Category Archives: Cuckoo for Copyright

Cuckoo for Copyright Comment Roundup

Posted on by

To finish up our roundtable on copyright I thought I’d highlight some of the more interesting comments.

First, Nina Paley very kindly stopped by. Her comments start here. In one of the most pointed she said:

My focus is not on changing the laws – that is extremely unlikely. Copyright will become increasingly draconian, because of of our rather corrupt congress and campaign finance system.

Interestingly, I mentioned in the interview that back in the day, when women criticized misogyny in certain underground comics, they were accused of “trying to censor.” As I demonstrate viable alternatives to copy restrictions, people argue back as if I’m somehow trying to “remove copyright entirely.” I can’t remove copyright, and even if I could, I don’t support dictatorial, unilateral legislative changes that don’t reflect the will of the public – that’s how we got the copyright mess we’re in now.

What I am trying to do is increase public awareness of what copyright is (an artificial monopoly), how it works (through censorship), and what we can do in the midst of a broken system. Many wonderful opportunities exist for artists right now, but no one needs to take them. I win either way: if more works are freed, I live in a freer society, and if more works are locked up, my free works enjoy a competitive advantage.

Over at his blog, animator Mark Mayerson touches on some issues particular to film.

I agree that Paley has something of the “zealousness of the convert.” Because a copyleft approach worked for her, she assumes that it is the right way to go and will work for everyone else. I think the Newman interview in the roundtable makes some very good points in refuting Paley.

There are so many issues wrapped up with this. First is the length of the copyright term. What’s the right length to benefit the creator and his/her heirs while still allowing for a vibrant public domain? Right now, it’s an open question as to whether anything will ever again be added to the public domain except by accident.

Then there’s the issue artists and corporations. Newman, as a composer, is creating complete works without the aid of others. It’s natural for him to hold the copyright. Even though Paley made Sita by herself, she included other works on the soundtrack. Paley is a rare case in that the majority of films are created by more than one person. In that case, who should hold copyright or how should it be split? What rights do financiers have relative to creators?

I think we can all agree that artists should have more ownership of their work (as opposed to corporations owning it), but should corporations vanish, we’re still left with some difficult questions.

There’s a fairly lengthy comment thread over at Sequenza21 inspired by Jonathan’s post. One interesting comments from composer John Mackey.

I’m also of the belief that your potential performer, like any person, has a mindset that you get what you pay for. If you don’t believe enough in your music to feel you should be compensated for it, how good is your potential performer going to think it is when they happen upon it online? If you, literally, can’t even GIVE it away, why would somebody think it was going to be good enough to take the time to even listen to the MP3 or look at the free score? It goes to something Eric Whitacre said once, and I’m going to get the quote wrong, but it was essentially, “nobody wants a free futon from Craigslist, but a whole lot of people would pay $50 for that same futon on Craigslist.” (I think his quote was actually more along the lines of “nobody will pay $10 for a futon, but everybody will pay $100 for a futon,” but the point is the same.) Charge something for it — and that’s a right that copyright law provides — and suddenly it’s “worth” something. A free futon is just gross.

And another from Chris Becker.

I do know from friends who have or currently write music for television (and I’ve done this as well…) that big corporate media entities have made every effort to cut down on the amount of money they are willing to shell out to composers because of the availability of license free music. Their attitude is: “Look, we can get this music for free OR my kid can spit it out using a loop CD, so YOU punk ass composer should be grateful we’re even considering funding a day of recording sessions…”

Back on HU, commenter plok, a singer-songwriter and supporter of freer copyright, had a whole slew of entertaining comments, which you can scroll back and forth for. I’ll point particularly this one.

I wish you would stop saying “stealing”, though — we’re talking about copyright infringement, not theft, and it’s an important difference. What the record company’s doing to me isn’t the same thing as what downloaders are doing to it — it’s a lot worse. In the grocery store of my music, the downloader’s taken a grape and popped it in his mouth; the record company’s taken cash from the till.

Also, a very important thing I would like to communicate to you is that the downloaders are mailing me a cheque — in fact they’re mailing me several different cheques, just by doing what they do. The people who download are avid music fans, they attend concerts and purchase records and T-shirts and sometimes even beer for the musicians, but more importantly than any of that they make new fans…and every time they do, they pay a Blank Media Levy designed to compensate artists for copying activity that can’t be monitored or controlled. Although I don’t know how much I’d be getting from it, because I can’t bring myself to take that money as long as individual downloaders are not just paying it, but also being prosecuted for what we all know they’re paying it for. And especially not if it’s my music they’re downloading, because nothing says they have to download my music instead of somebody else’s!

I mean, I’m grateful they like it enough to want to own, and even share, a copy of it! Make no mistake, that is support, and if the RIAA was interested in monetizing the Internet as a promotional resource instead of as a retail outlet, that support would translate to a couple different kinds of new income for me…but the word “stealing” stands in my way, stands between me and that new revenue.

Short form: I see downloaders as radio listeners, not shoplifters. Which is why every time someone expresses outrage that those people are getting away with murder, I always make a point of saying “well, why not join ‘em?” Radio listeners successfully send money my way even though they don’t pay user fees; I don’t see why Internet listeners should have to pay anything more than that. If you don’t want to buy the CD or go to the show, I can’t make you do it by shaming or threatening you out of listening to the music…and I don’t want to do any of that anyway.

Eric B. addressed the question of whether those who download illegally are petulant infants

As for the “petulant infants” on the internet–I think it’s a bit trickier than that. I mean, if I see a dollar bill floating along the street, I’m likely to pick it up and put it in my pocket, if the rightful owner is nowhere in sight (This actually happened to me the other day). I’m not going to undertake a worldwide search to return the dollar bill…nor am I going to leave it floating around. While the internet downloading thing isn’t really equivalent, it does have that feel. There’s so much crap floating around out there, that it’s kind of like picking it up in the street. I have yet to download for free music that in my former life as avid CD purchaser, I would have purchased. That is…I try to ask myself, “would I be buying this” under other circumstances, and if the answer is yes, I’ll probably buy it (on iTunes or in physical form, or whatever)…But if it’s a matter of trying something new–or obtaining something that I otherwise probably wouldn’t have bought–well, I’ll let your imagination wander. Sometimes this kind of sampling leads to purchases (concert tix, other CD’s, songs by the artists I especially like) and sometimes it doesn’t. My income is very limited (or has been over the last 5 years or so)–but my appetite for music isn’t really, so I try to resolve those things. I buy a lot of blank media, so I guess some of my money finds its way back to those who profit, or whatever…Maybe this makes me a “petulant child” –but I’m guessing I’m not an atypical one. I don’t think I should be able to get anything I want for free…and I do support my artistic favorites…but I do think that it’s unwise to take a pie-in-the-sky view of this kind of thing. Just because it may be ethically “wrong” to download without paying, it will continue to happen regardless of changes in copyright law unless there is a way to stop it. Currently, there isn’t really.

And artist and critic Bert Stabler summarizes my discomfort with the Paley’s movie Sita Sings the Blues:

The word you all are looking for is “patronizing.” Whenever NPR profiles the latest Ry Cooder musical fusion crossover between Mongolian throatsinging and Cherokee nose fluting, with an electronic cumbia bassline, the reason your stomach should churn with shame as an educated privileged cultural consumer is because, ever so quietly, guilt is being atoned for with tokenism. There are worse things than trying to atone for sins, but hardly a more irritating way of going about it.

Caro has an impassioned defense of Sita in that thread too (she gets to compare me to Hindi fundamentalists.) And there’s lots more from Caro and me and lots of other folks if you click about.

Thanks to all of those who commented and to our guest posters, Pallas, Jonathan Newman, and Alan Benard. And thanks especially to Caro for inspiring the whole thing with her interview of Nina Paley — and to Paley herself. You can find the whole roundtable here.

Sunday Funnies

Posted on by

To wrap up the roundtable, some Nina Paley cartoons. The full run of Fluff and a selection of more Nina’s Adventures, along with other cartoons, interviews, and miscellaneous materials related to Sita Sings the Blues, are available at the Internet Archive.

Click through the thumbnails below to read.

“Art vs. Commerce” from Nina’s Adventures

“Sheep Reincarnation” from Nina’s Adventures

“Urbana, Illinois vs Santa Cruz” from Nina’s Adventures

“That Little Weasel!” from Nina’s Adventures

Empire of the Godzillas from the Daily Illini (c. 1983, University of Illinois Student Newspaper)

Godzilla PDF

___________

Update: You can read the whole roundtable on copyright here. Despite Caro’s promise that this is it, we’ll actually have one more post on the topic tomorrow….

Copyright for Middle Brow Snobs (Or, Worst. Mashup. Ever.)

Posted on by

I’ve been a little obsessed with mashups recently, so I thought in honor of our free culture roundtable, I’d try making one of my own. Of course:

— I can’t beat match,

—my only software is Garage Band

—which I don’t know how to use,

— I’m a Paid Music Critic

— which means I have the musical eptitude of a lightly lobotomized bag of hammers.

These factors might deter others…but hell, Nina Paley’s got me all gung ho on niche markets, so I figure somewhere out there there’s a vital fanbase that wants to hear Beyonce incompetently combined with Australian female doom metal. No doubt there are LiveJournal groups and message boards and lord knows what else, right?

Right?

In any case, without further ado, here is Single Plague, in which Beyonce battles Murkrat, with a brief cameo by the Carter Family. Download it and weep.

For a discussion of real mashups and a list of some of the best, try this list and discussion by Alan Benard.

Put ’em together and what have you got?

Posted on by

Noah kindly asked me to list some of the mash-ups we like to listen to over at Poor Mojo’s Almanac(k) and Newswire as part of the copyright roundtable. This isn’t meant to be a comprehensive history, nor an exhaustive list, nor anything more than some of the form’s developmental high-water marks cribbed from Wikipedia’s Bastard Pop article and our personal preferences.

There was a time when mashups and audio art required relatively expensive and rare control rooms, a razor blade to cut recording tape montages together, and multi-track machines to lay them over one another. Frank Zappa borrowed from Edgard Varese‘s musique concrete. John Oswald examined the power of rock ‘n roll and preaching — later he would prove a dab hand at deconstructing a king’s pop.

In the digital age, the means of audio production became cheaper and more accessible with each passing year. By the late 1980s, hip-hop artists looped and dropped samples into their tracks with little difficulty, producing masterworks: De La Soul’s Three Feet High and Rising, Public Enemy’s Fear of a Black Planet, and Beastie Boys’ Paul’s Boutique. But the constant roar of James Brown’s repeated screams came to a halt in a shitstorm of lawyers and bills for sampling rights.

Click to play video: Negativland – U2
 
Negativland’s struggles defending the U2 sound-collage EP from the band U2 itself and its label define the difficult intersection of art and commerce, fair-use and copyright, parody and trademark. Happily, everyone involved eventually got over it.

Turns out that, if you are going to do this thing legit and clear the samples (and make money), you end up with weak raps over one monotonous bit of a song performed by one of music’s least-deserving billionaires. Goofy and tame sci-fi football chants also perch atop the charts. The worthwhile and entertaining experiments in laying bits of songs over one another have mostly moved underground.

Here is the promised list of mashups we think you might enjoy.

Now that the form, post-Danger Mouse, has solidified, mashups are mutating. Poor Mojo editor Morgan Johnson asked me to add, and this is apropos the final selection: “Honestly, with the whole remix culture thing, the line between remix and mashup has become terribly thin. Look at the Popular tab on Hype Machine, usually 50% of this most downloaded or listened to songs are remix/mashups.”

Steal This Blog

Posted on by

I am a composer of what we (or at least other composers) tend to call “Concert Music”, that is, music for string quartets and orchestras and choruses and other things where you sit quietly in a darkened hall while shooting dirty looks at the old lady unwrapping a cough drop. I am expensively and elitistly-trained, and work (mostly) by commission. It is pretentious, it is fun, and I do it professionally.
_____________
Note by Noah: This post is by Jonathan Newman, incidentally, who is so shy and retiring he didn’t give his whole name, or his website, which is here.
_____________

Following the thread of posts this week, I’ve noticed more than a little talk about copyright essentially being created for and serving only the Publisher, and not the Creator. But what if that’s the same person? Save one or two works, I am a self-published composer; I run my own “publishing company” (it’s not, really, it’s just me and my Schedule C and a quirky company name), but while serving that function I do all the things a traditional publisher would do, including its main function: to exploit the copyrights it owns. Doing this myself pretty much avoids exactly what Nina Paley describes as the “gate-keepers”…those faceless corporate intellectual copyright owners who keep The Artist down. But I am the Artist (and the Publisher, the two are halves of each other in the case of copyright), and so even though “exploit” isn’t exactly a friendly word, it works fine, because there are in fact multiple ways to make a property (a piece of art) work for the both. Because for me, owning my works, and controlling their distribution through licensing, is how I’m able to survive as a working composer.

Most people don’t realize that when you make a work–and I’ll use music as an example for obvious reasons–your rights concerning the piece are numerous, and on several levels. I’m probably missing one or two, but once your new hypothetical work is completed (Congratulations, writing music is hard) you’re faced with what is actually a constellation of rights, all of which one, or his/her evil representative if s/he’s traditionally-published, can “exploit”:

  • The right to reproduce it (make photocopies, bound copies, whatever)
  • The right to publish and distribute it (these days you should think twice before signing that one away)
  • The right to sync it to motion-picture (this was the prickly one for Nina Paley)
  • The right to “grand” staging (use in a play or ballet or pretty much anything else with costumes)
  • The right to record it (the first time that is, and then anyone can do it as long as they pay the statutory mechanical rates. Thus, covers.)
  • The right to “prepare derivative works” from it (for music that usually means arrange it for other ensembles or instrumentations. For books and whatnot that usually means licensing the rights for the opera, or the movie)
  • The right to broadcast it (radio)
  • and the right to perform it (the biggie)

Now, which one of these would you like me to ignore because you have a yen to use my piece for your own art? My performing rights royalties alone (collected for me by my Performing Rights Agency Of Choice, ASCAP, which also collects any broadcast royalties that might happen) are actually a significant chunk of my income. Does Free Culture want to perform my piece without my collecting that? It might help to know that performing rights royalties are split 50/50 between writer and the publisher. As my own publisher, I receive 100% of them. (Another gate jumped.)

What about when someone likes my recent chorus piece, and wants to arrange it for their brass choir? I should have an open-source attitude, right? Forget the arranging license (and the fee that goes with it) and let it everyone have it, because it’s good for creativity and good for artists?

My point is that any one of these singly isn’t such a big deal, and I’m all for the big picture of helping the Cause of Creativity. But taken as a whole, managing the above list becomes this precious bundle of life-giving manna. If you’re interested in being a composer making a middle-class living that is. Which I am. I don’t teach professionally (only occasionally, usually as a guest artist at a university), so If I give any of these up, all of a sudden, composing music (ie. making Art) is my hobby, and I have to make my living outside of it. And I’ve found that the people most vocal about the benefits of free culture, or maybe most lax in shepherding the above rights, are those who choose to make their living some other way.

When asked in this Roundtable’s centerpiece interview the other day, Nina Paley replied to a question about Free Culture creating “a situation where you can’t have an artistic middle class.”:

What we have now is you can get paid for craft. You don’t get paid for art. You get paid for craft. Every animator that I know, or almost every animator that I know, works at a studio, working on shit. They know it’s shit. They do their best to not think about it, but it’s god-awful commercial shit.

Actually, I get paid for Art. I could have chosen to get paid for craft (being an orchestrator, or a commercial music writer) and decided I was actually better at making Art. And it’s a slog, let me tell you, selling Art. Because Art is, I’m sure you all noticed, incredibly subjective. Only a few out of many like my stuff, and even less love it (shocking, I know). If I expected many to like it, I’d be writing very different music, and would have a lot more wiggle room when it came to giving away my stuff for the sake of Art.

Paley also talked about art not being a profession:

No, I wanted to keep it pure, the love of the craft. When I was quitting Fluff, I said “make art not money, make art not money. Remember that.” And of course I forget periodically and get confused and think that I should be making money and not art. They’re not mutually exclusive, not at all; but you’ve got to remember: don’t do stuff that’s bad for your soul in order to make money.

I realize how mercenary this sounds, but how about making art AND money? Ultimately I’m unclear how copyleft (or free culture in general) can maintain my middle class income. As far as I can tell, the current copyright laws are what do that.

All that being said, I’m actually a fan of Free. I give away content like crazy on my website…mp3 downloads…score of the pieces as PDFs, etc. I give away CDs, even commercial ones, like candy. I give away many (expensive to produce) printed scores. Because I do believe that giving away significant content–not just useless crap, but stuff people can use–in many ways does help create that “fan base” one hears the astute bands and rock stars talk about … those fans that downloaded the album for free, but who later on shell out 300 bucks to go to the tour show and buy the $25 t-shirts. Which right there crystallizes the line for the Free argument. You don’t see “Pay what you want” Radiohead (I’m a fan) letting their devoted following into the show for free. (Or do you? I don’t really know.)

So among this noise, some content is always controlled by the owner. It’s not all free, it’s just a question of what content is deemed not free. For me, it’s the performance materials. That’s the paper (maybe someday it won’t be, I’m looking at you iPads) musicians rehearse and perform from. I rent it, I sell it, I control it. Nothing drives me more bat-shit crazy than seeing other composers give away their stuff. A website full of scores and parts… “Come play my music! I won’t charge! I just want you to play it to Get My Name Out There!” Well, a) I hope you have another job, b) you just made mine a lot harder, and c) the end user (who, sure, now knows your name) thinks your stuff isn’t even worth the paper it’s printed on.

Paley giving away her (beautiful) movie is great and all, but I can’t exactly sell “Jonathan Newman” t-shirts to make up the difference. If all the cool kids started wearing Sita pins and she turned into a pop culture icon, then it hardly matters whether anyone paid to show the film. As much as I’ve tried to make it one, that avenue is not really an option for me.

It’s true, 70 years after death is a silly amount. 50 did seem like enough–2 generations after death (“My Granddaddy made that! You can’t touch it!”)–does seem like enough time to for the family to come up with some more original content, but, as we all know, Disney had other ideas. Still, before these protections, composers did have to scramble. In 1945 Stravinsky famously changed all the half notes to quarter notes in Firebird (not really, but you get the idea) to make a newly copyrightable version for the U.S, so he could prevent the loss of income from performances there. Nothing new under the sun.

I feel Paley’s pain, dealing with copyright owners. Just ask any composer about getting text permission from a publisher for a poem he or she wants to set. Try figuring out who owns the poem in the first place. Or if it’s PD or not. I’ve actually been working on an opera for the last couple of years. The first year of it was just figuring out who actually owned the film my collaborator and I wanted to adapt. I see the problem as not necessarily the rules themselves, but the companies/businesses/corporations who collect the intellectual property and then seem to want to hoard it without licensing it, simply because it doesn’t seem worth it to expend the time/energy/resources/employees to deal. Their mistake is that it is very much worth it. Exploiting the copyright (issuing licenses and collecting the fees), is the entire point of owning the property, whether it’s small or not. When they do that, they are serving the Publisher function. It’s how or whether they’ll do it at all that’s causing problems.

And so, I’m finding the Free Culture argument suspect. If someone wanted to copy my bicycle so that there’s now “one for each of us”, my honest reaction would probably be ‘Fuck you. I spent 3 years making that bicycle. Make your own damn bicycle.’ Not exactly a constructive argument, granted, but let’s at least acknowledge that we’re not talking about a bicycle. Bicycles are not special. They are not (generally) art. Yeeesss, all art is derivative, it’s true. Art is synthesis, and some synthesis is better (brilliant, “original”) than others. But creativity can not be its own reward. We still live in, for better and often worse, a capitalist society, and in no other profession in that society is a lack of compensation expected, like it is with Art. People get paid for charity work, for goodness sakes. At some point, someone, has to charge someone else, something.

________________
Update by Noah: This is part of a roundtable on copyright issues. You can find the whole roundtable here.

Copyright’s Dubious History

Posted on by

I’m an attorney with an interest in copyright law. When Noah asked me to participate in this roundtable, I decided to do some research on the history of copyright. I have no background in history.

Why do we have copyright? I figure Wikipedia is probably a decent barometer of common thought. The Wikipedia article on copyright currently has a “justification” section quoting the World Intellectual Property Organization, which states that copyright exists:

“To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public.”

Awwwwww. It gives creators dignity, and it somehow makes everything cheaper!

Unfortunately, as it turns out, history presents a more sobering story.

Copyright in Anglo-American law can be traced back to the practices of the Stationers Guild, an organization founded in London, England, in 1403. At the time, all commerce was dominated by trade guilds, each having a monopoly on their respective trades. People could only enter a trade by becoming a guild member, and the only way to become a guild member was to perform a lengthy apprenticeship in a guild affiliated business.

The Stationers were not writers, but were tradesmen who manufactured and sold books. Originally, the guild consisted of booksellers, book binders, text letter writers, and book illustrators. After the creation of the movable type printing press (the first English language book created with the new technology arrived in 1473 or 1474) membership shifted to printers and booksellers.

The printing press helped foster social change, in part by aiding the spread of new religious movements.  The government responded with laws to restrict freedom of speech, starting in 1534, when a new law was passed making it possible to commit treason through writing alone, books needed to be approved, or “licensed”, before publication and the importing of foreign books, which could contain unregulated ideas, was banned[i]

The government’s increasing desire to regulate books provided an opportunity for the Stationers.  In 1557, Queen Mary I, who probably saw a benefit in establishing closer ties between state censor and privacy industry, issued a charter for the Stationers Guild, turning it into the Stationers’ Company. This new charter ensured:

“…only members of the entrenched printing structure would print and sell books, gave them the right of search and seizure of any premises for allegedly pirated or contraband and illegal imported literature, and made fines and imprisonment for three months without trial mandatory for any person whom the company deemed guilty of violation of the law and of their charter.”[ii]

As you might expect, there was a limit to abilities of the authorities, and the monopolists, to stop the pirate book trade.  In 1588, for example, Presbyterian tracts were printed by presses that were moved around the country to avoid detection. Evidently, the consequences of getting caught could be extreme: “A contemporary who’s published handbills criticizing Queen Elizabeth the First had both his arms chopped off…”[iii]

The Stationers Establish A Proto Copyright: for their Benefit Only

Over time, a practice emerged in the Stationers Guild where a member would enter into a registry the first edition of a new work, and the other guild members would recognize that the right to print those books belonged to the registering member alone.

Authors had no legal protections at all.  While the registration system created some incentive for a printer to pay an author for the first physical copy of a book, if a printer obtained an authors manuscript without payment and reproduced it, an author had no legal recourse.

The parallels to certain 20th century media are really startling:

“All property rights in a printed piece belonged to the publisher. The author might receive payment for delivering a manuscript, and an occasional bonus if it sold well, to ensure access to his future writings. A successful book could go into twenty or thirty editions within a few years, but the author received no more than his first piece of coin. … Writers of broadside ballads rarely got more than a few coppers and all the ale they could drink. Rich amateurs were satisfied to see the finished work and have the opportunity to distribute it among their peers.” [iv]

Statutory Protection “for authors”

Eventually, social change caused a snag in the guild’s monopoly. The end of the 17th century brought the “Age of Enlightenment”, and a new Bill of Rights. The House of Commons became fed up with the practices of the Stationers (Evidently, there was concern over the price and quality of books), and refused to renew the law granted them a monopoly over the book trade. This created a problem for the vested interests:

“For five straight years thereafter, the Stationers’ Company unsuccessfully petitioned Parliament for a new licensing act and then regrouped to develop a new strategy: placing authors out in front as the alleged victims and as the necessary beneficiary of protection against their victimization.”[v]

Forming an alliance with notable authors of the day, the Stationers successfully lobbied for a copyright statute.

They got their wish, in more ways than one. Under the new Statute of Anne, passed in 1710, (granting a copyright of 14 years, with 14 year renewal), the business of making books continued much the same. Authors still generally sold their books to printers, for a flat fee, and the printers owned the books until the expiration of the copyright term.  Evidently, authors lacked the ability to effectively bargain with the era’s joint bookseller/ publishers.

It was apparently enough of a problem that, in 1735, a charitable organization, the “Society for the Encouragement of Learning” was formed, dedicated to the mission of publishing books on behalf for authors and giving the profits to authors.

Here’s the really juicy part: in 1738, the Society lobbied for amendments in copyright laws to improve the economic position of authors, proposing a rule which would limit an author’s ability to assign copyright for a term greater than ten years. The Society’s leader, John Caterel, a patron of the arts, stated in 1738 that “the true worth of books and writing is in many cases not found out till a considerable time after publication thereof; and authors who are in necessity may often be tempted to sell and alienate their right which they will hereby have to the original copies of books before the value thereof is known.”[vi]

Ultimately, the amendment was blocked by the House of Lords. As for the Society, the booksellers, protecting their own interests (evidently, many booksellers were also owned printers), refused to carry their books, and the society went out of business in 1748, a failure.

That’s the end of my copyright research.  I’m not going to make any direct parallels between the state of the 1730s book industry and media today.  Today’s market is undoubtedly more complex, and diverse, than the 1730 book trade.  I do think, however, that many of the issues of the time are still relevant to author’s today.  To what extent, I’ll leave as an exercise to the reader.

I mainly relied on the sources listed in the endnotes when writing this article, as well as the article “Law and the Regulation of Communications Technologies: The Printing Press and the Law 1475 – 1641” by David Harvey, available at http://www.anzlhsejournal.auckland.ac.nz/pdfs_2005/Harvey.pdf.

[i] Religious squabbles were something of a national past time in the 1500s, which saw the Catholics fighting the Lutherans, and later the Protestants fighting the Presbyterians.

[ii]Sanjek, Russell American Popular Music and Its Business: The Beginning to 1790.

[iii] Moore, Alan “Going Underground” in Dodgem Logic #1

[iv] Sanjek.

[v] Patry, William Patry on Copyright

[vi] Sanjek.

__________

Update by Noah: This is part of a roundtable on copyright issues. You can read the entire roundtable here.

Interview with Nina Paley, Part 2

Posted on by

This is part of a roundtable on copyright and free culture issues. You can read the whole Cuckoo for Copyright roundtable here.

=================================

Previously, Part 1.

So that’s a pretty good segue into talking about Sita. You’d talked about how traumatic it was to realize that the film was illegal. Can you tell me a little bit more about how you found it out, what specifically was wrong, and what it meant to get it decriminalized?

It’s not so much that I realized – I mean, I knew that I was using stuff that I did not have permission to use. But it should have been public domain. I knew that it should have been public domain. I learned that part of it was public domain and part of it was not, and the realization was not so much “oh, I don’t have permission for this.” The realization was the severity of the penalties, and how much more severe the penalties have grown in the last 10 years. Realizing that, wow, I could go to jail for making this film. That was impressive! And it’s all because of these law changes thanks to the industry reacting to the advent of the Internet and really cracking down, and it was like, “wow, I could go to jail.”

If you didn’t pay?

It’s not even if I didn’t pay. There was this dawning realization that getting permission was this Kafkaesque nightmare. Because before that, it was like, oh well, I’ll just pay. They’ll say some amount and I’ll pay. I could not have imagined the difficulty of even talking to them. They wouldn’t even answer my calls. So I think that after a few months of getting the runaround from all of them and not having our calls returned, and being told to call other places and then that went nowhere, while reading about the severity of the punishments, maybe it just took a couple of months, April-May of 2008, when I’d been working on this for a few months and realizing There is No Way Out. They’re not going to talk to me. They don’t have to talk to me. The burden is on me. If their deal is that they only talk to you if you hire a paid intermediary, I have to hire an intermediary to talk to them. I have to do this stuff that I can’t afford to do, and I’d better do it, because if I don’t, I could go to jail [laughs] not to mention being fined zillions of dollars.

So it wasn’t a sudden moment, it was a long gradual slow sinking feeling.

Was it pretty easy to find out at the beginning which pieces were copyrighted and which pieces weren’t?

Well, it was possible to find out. I knew that her voice was not the problem, thanks to the student attorneys at American University.

But someone else did that research; you couldn’t do that on your own.

No, there’s no way I could have done it, but at least they did it for free. And they did all this extensive research on the recordings, and we found that the recordings were not a big problem, and that the underlying compositions were under copyright. I knew that from the beginning, but I could not have imagined that it would be that difficult to clear them. I really thought they’d just name some reasonable number, ‘cause they want money, right? They’ve gotta be – everything I’ve heard about these companies is that they’re interested in money, so clearly they’d set something up so they could get money, right? They wouldn’t ask someone who doesn’t have money to pay $220,000 because there’s no way they’re going to get that! That’s why there’s the whole statutory rate for mechanical licenses. I learned that the statutory rate exists because the record industry lobbied for it, because too many labels wanted their artists to record covers that were the property of other publishers, so it was the record industry that got the statutory licenses for the benefit of the record industry. So the licensors were just crazy; there was no way they were going to get this $220,000 they quoted, and that’s fine with them. It was just this dawning understanding that if no one gets to see my film, that’s fine with them. They don’t have anything to gain from my going forward. It’s not worth the trouble to them, but I could go to jail. I could go to fucking jail.

So as the technology to do things with culture has gotten more democratic they’ve gotten more draconian in almost every way.

Yes. This is like a mafia shakedown. Copyrights were always designed for publishers, not authors – you should read this great essay by Karl Fogel about the history of copyright – but they’re a monopoly for publishers and the argument that publishers used to get this monopoly is “look at this writer. How is this writer going to get money? They’re going to get money by selling us their rights. First we give them a right, and then they sell it to us and then we get a monopoly, yay!”

This is so utterly irrational and unreasonable. It’s something that was supposed to be in the public domain, and if the cultural work is lost, they don’t care. They don’t give a shit about my film, or the songs they “own.” So what I’m supposed to do is kill the film. That’s every message I’m getting: the whole structure is designed for me to kill the film. That is the only possible outcome of this. So then I was like, ok, this is censorship. If the system is designed for me to kill my film, this is censorship. And it was a long struggle, let me tell you. Many tears were shed; I felt so trapped.

You found lawyers who were willing to negotiate this?

I had a sales agent who is a lawyer. I didn’t end up using him in that respect, but his firm – he was trying to get it sold to a distributor and the distributors required that everything was cleared first, and the burden of that fell on me. So initially I used his law firm which was phenomenally expensive and also they did a terrible job. But at least the companies talked to them, because they knew the name. So we got the initial estimates from the companies, and for the mere $10-15K or whatever I ended up paying this law firm, I got to learn that $220,000 was what I would have to pay to clear the rights.

But you didn’t end up paying the $220,000.00; you ended up paying in the range of $50K. What would have been different if you’d paid the $220,000.00?

Then it would be free and clear. Then I would not be required to pay additional money for every 5000 copies sold. I have to make additional payments now, for every 5000 copies sold.

If someone makes a derivative work and they use the songs, can they pay the fees listed on your website, or do they have to negotiate their own?

They have to renegotiate their own licenses. The only thing that my license fees pay for is the cost of a copy, any copy that is sold, a DVD or the iPhone app. If you sell an iPhone app of a movie, you have to pay those fees, which means that the iPhone app is either very expensive or free.

So if someone downloads the film and uses the sound, they’re going to have to call and get their own agreement.

Right, it is a copyleft work that contains copyright stuff. And the copyright stuff will probably be unfree forever, so any reuse of the songs has to be relicensed. You could certainly use all of it without the songs. And some of the modern songs are copyleft now as well; you can make derivative works with all of the soundtrack works except the Rudresh Mahanthappa songs and the Annette Hanshaw songs.

I had one question about Sita itself. The first time I saw the film this dynamic of the whole purity and honor thing really struck me, because I associate that so much with this very politicized aspect of Islamic culture, with honor killings, and that was a real obstacle for me the first time I watched the film, because that such a serious issue for so many Islamic women. I realize this film is not about Islam in any way, but this is a phenomenon that’s been politicized in our culture in relation to Islam. I’m not sure most Americans would realize it’s even an aspect of traditional Hindu culture. You’re obviously critical of it in the film and show it as hurtful, yet I don’t think your film politicizes it. Did you think about that at all when you were making the film, that this issue of a woman’s ‘purity’ being a smear on male honor is a really loaded concept?

I think it’s a problem in all cultures. I just had a conversation with a Hindu friend of mine about Islam, just last night, and I pointed out that our ideas about Islam are not Islam as a whole, they’re a very Arab idea. There’s crap in parts of the Koran just like in parts of Hindu texts, and Christian and Jewish – I don’t know if Buddhists have really horrible things in their texts, although certainly Buddhists can act horrible, like everybody else.

Actually, Ken [Levis], who just walked in here a few minutes ago, made a great documentary called Struggle for the Soul of Islam, and he shot it in Indonesia, which for a very long time has practiced a relatively gentle kind of Islam and only very recently this Arab-style fundamentalist style has come in, and the fundamentalists say that their way is the Real Islam – they say that this really tiny slice of Islam is the Real Islam, and I sometimes wonder if it’s just pure oil money that has created the crisis in today’s Islam, because this Arab style is dominating. They do outreach, they go everywhere and try to convince Muslims all over the world to practice it their way, and that their way is the real way.

Any religion has misogynistic practices, all cultures – ours has evolved from a culture with those practices – so I don’t think they’re unique to Islam. We just know a lot more about them in Islamic countries today.

Right, they’re politicized in Islam in a way that they’re not politicized in other cultures because of political Islam and the way that’s intersecting with the West.

And I can very much believe that they’re more prevalent in Islamic countries right now, which is not to say historically. Obviously, sure, Hinduism has that tradition too, and nobody likes it when you talk about things negative in their cultural history. It’s just all over the world. It’s certainly been a practice by Christians and Jews.

The first time I saw the film it was something I snagged on, especially at that scene where Sita is taken into Mother Earth, which just felt so much like a metaphorization of death and yet it’s presented as a victory for her. The second time I saw it I had gotten more into the spirit of it and just thought “this is so great.” [laughs]

I love that scene. When I do talks, I often don’t want to sit through the whole thing and I come in at that scene –– and it’s just “yes! Go, Sita, run!”

You are giving a lot of talks, now, and spending much of your time being a political activist for copyleft. Do you see yourself being self-consciously political in your art now, or is it going to be two strands?

I’m going to do whatever the muse tells me to do. This past year, definitely these copyright and censorship issues have been on my mind. So it’s natural and essential that I express that. It’s very unlikely that will last forever, because I tend to be passionate about things and then I work them out of my system so I can talk about something else.

I’m always singing your Copying Isn’t Theft song, whistling it in the convenience store and belting it out in the car when I’m at a redlight.

[laughing] Yay!

It’s really catchy, and it’s always popping into my head and reminding me to think about copyleft. And I think with the samples of work I read and looked at from throughout your career, that’s a very Nina Paley thing – that little encapsulation of some point that just really gets at the heart of a point in a way that sticks in your head. Do you really just think like that or do you work at coming up with those things?

I’m terribly forgetful, and every day I will hear or think something that seems so brilliant, and it is a constant source of pain that I can’t remember them, and I guess I do this to remember, but I can only do it for a tiny, tiny fraction of what moves through my consciousness. People say such great things, and I get a headache! I’ve had a headache for four days, because I’ve heard such great things that people have said!

You should carry one of these recorders around.

Yeah, but who has time to listen to all that! Sometimes I’ll write notes, and they go in a notebook and I never look at that again. That’s why I’m thinking about the attention economy: there is more brilliance than I have attention for, and it’s really painful. It’s also my biggest concern as an artist, when I make anything: who is going to look at this? Who has time to look at this anymore? We’re all looking at everything, so who has time to look at anything? And a lot of it is fantastic. I know 98% of it is crap, but there’s so much more of everything, that the 2% of brilliance is growing. Which is why, mostly, I love the idea of the free internet as a wonderful culture filter. I just sit there and wait for someone to recommend something to me, but I don’t have the patience to filter everything myself. That’s how it really works – people recommend things that they like. They don’t recommend things they don’t like, and you have your networks of people that you trust, and they suggest things to you and it all works in a very decentralized, organic way. I have faith that this is increasingly going to be the way we filter our media.

Even when things are recommended to me, I have a very short attention span. So if someone suggests a YouTube video, if I’m not hooked after 45 seconds, I’ll give up. I’ve seen YouTube videos that have made me cry. I saw a great one yesterday; it’s so dumb, it’s so perfect for the Internet. It’s the Cat-certo. It’s a full orchestra, being conducted by a live conductor, beautiful 5-minute long composition, accompanying Nora the Piano-Playing Cat. Nora is just some woman’s cat who goes bang bang bang against the piano. It’s a cute cat video that’s been all over the web and this guy did this beautiful orchestral thing to this video.

I think audiences are taking back their power as the scarcity of works goes away. Most people haven’t realized the power that they hold in their attention. I’ve been thinking about how much people pay for attention, and this idea that people have that the work is a product; the work is the scarce resource, and people will pay for the scarce resource. And it’s so completely backwards, because in the digital age, works are not scarce. They can be copied for almost no money, and the scarce resource is in fact people’s attention. And of course that’s the last thing the media industry wants them to think.

And people don’t acknowledge that. Artists pay a lot of money to get attention, but they don’t talk about it. Most films lose money. It’s like 95% of films lose money at the box office, and I don’t know how much time they give them to make money back on DVDs and merchandise, but most of them make a loss permanently. You’d better be glad there are niche audiences because that’s the most you can hope for!

That right there should make you go, “ok, what is happening?” People are doing these things and they are losing money. I was thinking about my All Creative Work is Derivative Minute Meme, and it was hovering at 8000 views on YouTube. And I thought, “oh, I want more people to see it!” And I wondered if I was going to have to promote it to get more attention. So I was thinking about submitting it to film festivals, and the amount of money it was going to take to submit it. I picked out 20 film festivals and it averaged about $40 a film festival to submit, and also the cost of making the DVD, packaging it, the time spent filling out forms, and postage, and all that sort of stuff, and that’s probably $60 a festival.

If it got into the festival, how many people would likely see it? 100 if I was lucky, and probably more like 45. But let’s be generous and say 100. I am paying $6/person for their attention. And I would totally do that. When I look at the economics of me, that’s not a bad investment; it helps the film a lot.

Speaking of the economics of you, Jaron Lanier asked you [on WNYC’s Soundcheck radio program] about artists being able to make a middle-class living, a consistent and predictable living. It’s a general response to copyleft, that this creates a situation where you can’t have an artistic middle class.

I think it creates a situation where you can have an artistic middle class, which we don’t have right now. What we have now is you can get paid for craft. You don’t get paid for art. You get paid for craft. Every animator that I know, or almost every animator that I know, works at a studio, working on shit. They know it’s shit. They do their best to not think about it, but it’s god-awful commercial shit.

Which is not to say that commercial stuff is bad, I’m not anti-commerce. But it’s devised by some idiot, it’s lowest common denominator, and this is what really talented people do. They do crap work. And it’s not just in animation; it’s at all levels. I can say when I did illustration work, 9 times out of 10 it was for some god-awful piece of shit that paid a lot. That’s not art; that’s craft. You can be paid for your craft. But copyleft actually allows me to make a middle class living as an artist for the first time in my life. It’s not predictable. I don’t know how long it’s going to last, but I will say I’ve got more money coming toward me that I ever had before. But the real problem is that copyright proponents don’t like the idea of artists making middle-class livings, because artists are supposed to be fabulous superstars and make millions and millions of dollars. It’s the lottery, the winner-take-all. I think with copyleft you can have a lot more artists doing a lot of good art, making reasonable amounts of money, but this whole fantasy of being the super duper rock star that makes millions and millions of dollars, that is a lot less likely.

It’s the artistic version of people voting against their economic interests because they think they can be Bill Gates.

Yes. Proprietary art is the lottery, and people fantasize about winning the lottery. And with this other system, it’s like, well, if you do this you’re not playing the lottery anymore. You’re not going to win the lottery but you’ll have a much better chance of actually making a living, but no lottery. And they go “Noooo! I wanna be able to win the lottery! And if that means that what I’m actually doing is squandering my talents on somebody else’s piece of shit, then I’ll do that because I wanna be like Madonna someday.”

And by the way, these professional people like Marvel Comics, that’s a product factory. There’s very little of Marvel that I would call art. I’m not saying there’s none.

I have a friend who says one of the things that appeals to him about superhero comics, especially from the ’50s and ’60s is looking for the places where you can see that there was an artist behind that craft factory, looking for that one panel out of 100 where you can see that hand behind the art. That’s what he looks for specifically, and he finds it very humanizing.

That’s really cool. There’s another problem in that copyright is not related to attribution. We don’t actually have laws that protect attribution. You can protect attribution in a copyright contract, when you sign your rights away, you can include things that say you will be credited. But there’s nothing inherent in copyright that says that; that’s up to your contract. So most of these craftsmen, the ones that Jaron Lanier calls artists, they’re not credited. They sold it, and it’s just amazing. We don’t need copy rights; if anything, the big concern for society as well as for individual artists is plagiarism.

With Copying is Not Theft, people conflate copying and plagiarism. Oh, copying is not theft, oh, I’ll just copy this kids’ term paper, and I’ll get an A on it. But no, if you copy it and copy their name with it, that’s copying. If you copy it and put your name on it, that’s fraud! They’re not the same thing!

I just wrote an article called the Limits of Attribution. It’s got pictures; I illustrated it.

When we were going through all the work [on Sita], people kept saying, “you realize copyright protects you?” but it really doesn’t. It doesn’t even protect the people who want the lottery; it protects their fantasy. And also people would say, “Oh, it’s all about money.” But if the corporations wanted money from licensing they would set reasonable prices and they would let ordinary people talk to them. It’s not about money; it’s about control.