Tag Archives: copyright

Voices from the Archive: Kurt Busiek on Copyright Extension and Comics

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Kurt Busiek weighed in in comments a while back about what rights the original creators should have when copyright is extended on works owned by corporations (i.e. Superman.) His thoughts are below.

>> What is your view of the termination rights that have been introduced along with the copyright extensions? >>

I’m not Noah, but I think they’re a necessary corollary of the extensions.

When someone buys an intellectual property, they’re essentially licensing it for the term of copyright, after which point it goes into the public domain. So they were never buying it “forever,” they were buying it for a clearly-defined number of years.

If Congress extends copyright, they’re changing the deal, making their license last longer. The reasoning behind the termination rights is that if the term lasts longer, the purchaser never bargained for that extra period. So who owns the IP for the extended period? It was supposed to be the public, but it isn’t. So should it be the purchaser? The creator? Someone else?

The solution they came up with was to give the creator an opportunity to reclaim the property for that extended period, rather than simply to give the purchaser that extra chunk of ownership time for free. If you’re going to extend copyright in the first place, that seems reasonable — when the company that is now DC bought Superman, they did not have any expectation that they would still own him today. So them owning him today is not part of the initial deal — it’s an artifact of copyright extension, and not something they ever bargained for in good faith. And having the government just hand it to them is a preposterous transfer of value from the public to corporations. [Not that the copyright extension wasn’t a preposterous giveaway anyway, but it’s slightly less preposterous this way. If the deal is going to be made longer, then the terms have been altered, and the other terms should be subject to renegotiation too.]

This all extends from the copyright extension, but it makes sense. If you’d only leased your Camaro for a period of time and the government decided that the lease was going to be extended, you wouldn’t expect that the extension would be free. Not that the Camaro comparison makes any sense — you own that Camaro, but you don’t own the right to make sequels to it, to spin off a line of She-Camaros and the Legion of Teen Camaros and Camaro’s Girl Friend Caprice. Those rights remain with GM.

Still, Congress was giving away what belonged (or would belong, after copyright expiration) to the people, so as the people’s representatives, they got to decide whether to give it to corporations for free or to make it possible to renegotiate the term at the point the deal would have ended under the old rules. It’s almost shocking that they didn’t wholly benefit corporations, but it’s logical that they didn’t — it’s not merely that nobody knew Superman would still be valuable today, it’s that nobody expected Superman to still be an ownable property today, so if he is, there’s room for other changes.

I think copyright lasts too long. I think 25 years for corporate copyrights is too short, but somewhere in between there’s probably a good number. Good luck to anyone trying to get that past Congress against the will of Disney, though.

And I think $11 million is a lot of money, but it’s a fraction of what Superman should have earned for its creators. As a comparison, CARRIE was an early sale, too, and the deal was weighted heavily toward the publisher, but it’s made its creator a lot more money than the first couple hundred pages of Superman. Or TO KILL A MOCKINGBIRD, to pick another first novel. That the Superman creators were profligate with what they got doesn’t mean it was enough — and while they might well have been legally stuck with it, DC shouldn’t be any less stuck with copyright expiration and/or reversion, but as noted, corporations change the rules in ways we’d call greedy if it was individuals doing it.

The freaky part is, the value in having Bob Kane happy and pro-DC versus the expense and public-perception damage of having this kind of case go on is a monetary issue, too, and it’s not like this stuff came as a surprise. The point at which to head off this kind of case — not just for Superman, but for Kirby creations and Gardner Fox creations and so forth and so on — was ten years before the termination window opened, and through something more generous than a nice pension that’s dwarfed by the scale of the profits rolling in.

These days, of course, contracts are written to get around the specter of potential future copyright extension and reversion, though who knows whether that’ll be held to be legal in decades to come? If it doesn’t, I expect that we’ll be hearing that creators who take advantage of changes in the law are greedy, while corporations taking advantage are being fiduciarily responsible.

So it goes. And $11 million is a lot of money, but how much of the $4-plus billion George Lucas is getting is about the IP rights to STAR WARS? Lots of heated argument to be had on that, I’m sure — but circling back to the start, I think termination rights are an artifact of extension. If termination shouldn’t be allowed, then extension shouldn’t have been, either.

In which case, Superman would have entered the public domain in 1994, and been free for anyone to use for the past 18 years. Every day of DC’s ownership of the character since then (plus the years of ownership still to come) was a gift given from the public to DC, and one of the restrictions we put on that gift was that the creators had the right to take it back during a particular window.

Considering the value of that gift, the public had the right to put whatever strings they wanted on it, really, and if one of those strings was that Siegel and Shuster and their estates got a shot at benefiting from that gift too, that’s not really so bad.

 

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Not the Spokesman You Are Looking For

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A lot of artists I know sang the praises of David Lowery’s recent post in response to NPR blogger Emily White because they agree with what they see as Lowery’s morality – the importance of the idea that creative work is valuable and worthwhile and worth paying for, not just a side product to lure advertisers or some sort of cultural spirit that doesn’t belong to anybody and longs to be free. Lowery’s post was validating, and people felt that he was sticking up for them and speaking out for their interests. A lot of people in the music industry came out against Lowery’s analysis, but there was still a strikingly strong outpouring of support for the simplicity of his argument and his willingness to stick up for a morality in the artists’ interest.

I agree — that morality should be incontrovertible. Cultural creative work is work; it is valuable; it deserves generous compensation and respect. It should not be stolen by consumers and neither artists nor their work should be exploited by other entities in the production and distribution chain. Encouraging people not to steal is a good thing now just like it’s always been a good thing, and firing back sharply at anybody who denigrates creative work is even better.

But the challenges facing artists in the digital economy require extremely informed, eloquent advocates who can go beyond emotional validation and imagine creative new solutions to the complicated new context in which artists work. Lowery is not that advocate. He’s not even a particularly good spokesperson for this constellation of moral ideas, because being a spokesperson for a morality is about convincing people to change. Lowery’s post, and the comments he’s made on this topic previously, are neither persuasive nor effective because the them/us quality to his rhetoric results in a patronizing superiority that’s nothing more than moral shaming. That’s more the language of clashing subcultures, cliquish sectarianism and bad parenting than it is the language of advocacy, moral persuasion, and cultural change. It’s as if Lowery was put-off by the tone of the tech subculture and those damn kids on his lawn, and allowed that feeling to blind him to how much the arts and technology “subcultures” have in common, in general and on these issues in particular.

Strange and Insidious Bedfellows

In the process of rejecting those shared interests with the tech world, Lowery — probably inadvertently — builds common cause with people and individuals (and even nation-states) who advocate different insidious forms of immorality, ones much more harmful to artists in the long term: violations of civil liberties, violations of privacy, and the subjugation of the interests and voices of individuals to the interests and voices of corporations and state power.

This week’s news gives a good example of what happens when artists take the wrong side: last week, the European Parliament rejected the Anti-Counterfeiting Trade Agreement, ACTA, by a decisive vote of 478/39. The United States signed ACTA in October of 2011, and the EU trade representatives supported the agreement as well – but the EU required it be ratified by Parliament, and this week that ratification failed.

Why did it fail? Despite widespread agreement that international action was necessary to combat international criminal piracy and intellectual property fraud and counterfeiting, the bill contained numerous provisions that targeted individuals and technologies, including ISPs, for criminal prosecution and that, perhaps even more importantly, placed restrictions on the use of legitimately obtained material that are much stricter than those in current international law. The EU’s opposition to the agreement was predicated on these specific concerns:

“On individual criminalisation, the definition of ‘commercial-scale’, the role of internet service providers, and the possible interruption of the transit of generic medicines, your rapporteur maintains doubts that the ACTA text is as precise as is necessary,” (Scottish MEP) David Martin, the rapporteur, wrote in his statement to Parliament (PDF) explaining his recommendation to reject the bill. “The intended benefits of this international agreement are far outweighed by the potential threats to civil liberties.”

Almost all of the identified threats to civil liberties are provisions that grow out of the American model of digital copyright enforcement, promoted by organizations like the MPAA and RIAA and legislated in the Digital Millenium Copyright Act. The DMCA loosely follows what copyright activists call “copyright maximalism” – when digital distribution upended the theretofore “natural” limitations to copyright infringement by eliminating material scarcity, the response of large corporations and governments was to remove pretty much all the existing limitations on copyright enforcement, including any meaningful application of fair use. Maximal enforcement = “copyright maximalism.” Back in the ’90s, when the DMCA was being formulated, Wired magazine didn’t even try to hide their contempt for the principles:

1. Give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users make even temporary reproductions of works in the random access memory of their computers;

2. Give copyright owners control over every transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public;

3. Eliminate fair-use rights whenever a use might be licensed. (The copyright maximalists assert that there is no piece of a copyrighted work small enough that they are uninterested in charging for its use, and no use private enough that they aren’t willing to track it down and charge for it. In this vision of the future, a user who has copied even a paragraph from an electronic journal to share with a friend will be as much a criminal as the person who tampers with an electrical meter at a friend’s house in order to siphon off free electricity. If a few users have to go to jail for copyright offenses, well, that’s a small price to pay to ensure that the population learns new patterns of behavior in the digital age.);

4. Deprive the public of the “first sale” rights it has long enjoyed in the print world (the rights that permit you to redistribute your own copy of a work after the publisher’s first sale of it to you), because the white paper treats electronic forwarding as a violation of both the reproduction and distribution rights of copyright law;

5. Attach copyright management information to digital copies of a work, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the network and what is being done with it at any time;

6. Protect every digital copy of every work technologically (by encryption, for example) and make illegal any attempt to circumvent that protection;

7. Force online service providers to become copyright police, charged with implementing pay-per-use rules. (These providers will be responsible not only for cutting off service to scofflaws but also for reporting copyright crime to the criminal justice authorities);

8. Teach the new copyright rules of the road to children throughout their years at school.

Now, ACTA isn’t merely about enforcment against individual users. It also addressed serious large-scale counterfeiting, something which global trade agencies need tools to deal with. But because the language in the legislation was so slanted toward copyright maximalism – toward protecting the economic interests of rights holders without thought to the expressive interests of individuals, the legislation was seen as threatening civil liberties and conflicting with international and US law, and it failed to pass Parliament.

In a very real sense, this means the agreement is dead. Six of the 8 original signatories would need to ratify it for it to become international law, and this is extremely unlikely to happen given the loss of European support.

In other words, a desperately needed international trade agreement, that diplomats from all over the world spent over a half-decade drafting and promoting, failed because organizations who purport to represent artists insisted that it include inflexible provisions that threatened civil liberties.

What does it mean when artists, through the actions of their representatives on the global stage, are no longer seen as standing on the side of humanity and freedom of expression against exploitation and oppression, but are seen as against civil liberties themselves? What does it mean when artists like David Lowery make arguments that justify and encourage artists to turn a blind eye to these implications and side, instead, with those representatives, the corporations they represent, and their narrow interests?

Why I think David Lowery’s post did more harm than good

In his response to White, Lowery appeals to some very intuitive pro-musician sensibilities, but in the process of outlining those sensibilities and the priorities and moral actions he thinks they should lead to, he makes those musicians into an interest group like every other interest group. This is especially evident in his presentation to the SF Music Tech convention, held earlier this year. It’s a deeply politicized speech that makes explicit that “cliquish sectarianism” I mentioned earlier — his treatment of the tech community in the final section is strident, vitriolic, and divisive in the worst way. Lowery defines his interest group very narrowly and fans the flames of hostility toward anyone who isn’t 100% part of his group.

Yet there are so many stakeholders in this debate who don’t quite fit Lowery’s interest group: people who make obscure kinds of music that record companies never cared about, artists who have had measurable success with Internet business models, people who make forms of art which have never been well served by the “old boss”, people who make technology, entrepreneurs, and a really large variety and range of consumers and expressive individuals. All of those groups have valuable perspectives, ideas, and influence. Consolidation of that grassroots influence is a viable way of fighting entrenched power structures – as my friend Harold Feld says, “policy is not about getting people to do the right thing for the right reasons, it is about getting them to do the right thing for their own reasons.”

The consolidation of influence from the tech and arts communities motivates technological advances with artistic purposes and artistic uses of technology. It spared us some pretty awful legislation when a coalition of artists and technology people defeated the SOPA and PIPA bills. It was important for convincing stores like Amazon to sell DRM-free MP3s that consumers can actually back up and transfer from machine to machine. Finding ways to get artists, the technology sector, and consumers to see each other as compatriots with shared goals is important for making sure everybody’s interests are well served as tech policy around issues important to the arts evolves.

Making musicians into a narrow interest group, oppressed by the “new boss” and at odds with the rest of society (whose world is “made of computers”) is the opposite of the collaborative spirit our current situation calls for. David Lowery is a polemicist, someone who plays to emotions and likes to get people riled up. That’s maybe natural terrain for a songwriter (although not all emotion is polemical), but it’s an abysmal approach for the actual real politics facing artists in the digital economy. His polemic distorts other people’s positions, whether due to passion or ideology, in ways that obscure the full factual landscape, that create rifts between groups who need to be working together and that ossify people’s commitments and vantage points rather than getting everybody informed about the big picture and stimulating imagination across economic sectors. Right now, there’s little more counterproductive than such “partisanship.”

Why I think David Lowery maybe can’t read

Lowery’s response to Emily White emphatically claims a moral high-ground in response to White’s saying she and her generation are unlikely to “ever pay for albums.” Lowery makes an elaborate, and completely accurate, case that stealing music is a bad thing to do, and that all the reasons people usually give to rationalize file sharing are besides the point.

The problem is that almost nothing Lowery says in his incredibly patronizing letter to White has much to do with what White actually said.

Lowery’s letter is a riff. He picks up on that one phrase about not paying for albums — which doesn’t mean won’t pay for music — and improvises for a few dozen measures, making a largely unrelated piece that only vaguely alludes to the original. In jazz, that kid of riffing is how musicians build culture. But in argument, we call it building a strawman. His points are valid on their face, but would have been stronger and more effective – and more ethical – had he cast them in response to examples of people actually saying the things he’s complaining about.

The core issue of White’s post – which was a response to her boss’s post about uploading his entire (legally purchased) record collection into the cloud – was not rationalizing why peer-to-peer file sharing is good or even why it’s ok to get music for free from your friends. White’s point, which almost everybody ignores, is instead that we are in a post-file-sharing world. (Bob Lefsetz describes it by saying that arguing against file sharing is like arguing against a dot matrix printer.)

It’s important that White didn’t file-share to build her collection, and that she didn’t use any of the excuses that Lowery is at pains to debunk in order to defend herself or the ways she did build her collection. She in fact says straight up that both file sharing of copyright material and collecting songs without paying for them are wrong and hurt artists. So in making a strawman out of her, Lowery ends up chastising someone who agrees with him. No good can come of that. People who make strawmen out of other people who already agree with their moral point are not good spokespeople for that moral point.

Why I think David Lowery doesn’t get it

I know a lot of people feel really wronged by the way the digital economy, its stakeholders and its watchdogs, have failed to deal expeditiously and effectively with the very real problems created by changes in manufacturing and distribution structures after widespread digitization, and they want some moral justice as well as real solutions. I understand the desire of artists to emphasize these moral concerns. But Lowery could have written a post focused on morality without also building a strawman, if he were a careful reader interested in a conversation. White’s conclusion isn’t without a moral element — it’s just that the moral element has nothing to do with stealing.

White’s conclusion — her really smart and interesting and provocative conclusion — is basically this: in a post-file-sharing world, large-scale consumer demand for owning media in any form, including CDs, vinyl, paper books, DVDs, even digital files, will be significantly reduced, possibly to the point that demand for owning music or copies of any art no longer exists at all. The collector’s impulse will be transformed (although probably not eradicated) by on-demand delivery and the end of scarcity.

Think about what this means for everybody except the historically minded archivist.

No bins full of CDs or racks of DVDs above the TV.
No overstuffed bookshelves and stacks of books in the corner.
No long boxes.
Not even the massive hard drives full of downloaded songs.

A near-complete dematerialization of reproduced culture.

As the cloud and various on-demand and streaming technologies evolve and mature, White predicts that most people will prefer using them to buying. Her point is basic demand-side economics. Not that people will file-share. Not that some significant percentage of people under, I dunno, 30 years old see nothing wrong with stealing content. But the idea that in the future most people, period, will prefer to buy access to music than the music itself. They will, as with all cloud technologies, begin to consume and interact with art as a service rather than as a product.

It’s provocative, and radical, but it’s not necessarily a bad thing for artists: there are predictions that, once a critical mass of media becomes instantly available on-demand, artists will actually make more over a single listener’s lifetime from that listener streaming their albums over and over than they could possibly ever make from that fan buying the album. Lowery could have grappled with this new way of thinking. He could have questioned whether there are inherent and meaningful moral or ethical problems for artists in legitimate cloud-based business models, and he could have asked what potential new illegitimate uses cloud-based models might give rise to. He could have called attention to the ethical and moral dimensions of artists’ standing in the cloud. Writing about those would still have been a riff, but it would have been a vastly a more honest and productive riff than the one he came up with.

However, I don’t think morality is what’s really at stake here. Those issues need to be framed up in detail – that’s one of the potential good outcomes of a large-scale public conversation – but they’re definitely not simplistically moral like consumer theft, or even the more complex terrain of how to ensure our society values creative work both culturally and economically. More important than morality here is politics: who has control of those “universal databases” White calls for? How fair is the competitive landscape? What are the licensing obstacles? Are there tensions between the existing structures of copyright and adequate compensation based on playcounts? Do the models of ownership and rights holding that have evolved for media, and in particular for software, really work ethically and effectively for creative workers? There are lots of questions about digital distribution – what it even means to “own” a copy of an artwork; whether the use of arts should be and can be subject to the kinds of licensure restrictions placed on software use; when and how fair use applies to creative reuse; the extent to which all the various middlemen, technological and creative, are beneficial to the process or are in the way; whether there are meaningful differences between a personal collection in the cloud and the catalogs of streaming services, what those differences are, and whether they make sense and provide value to the consumer given the relative costs of those models.

Too much emphasis on morality in this particular context creates the illusion that people are more immoral and entitled than they actually are. There are plenty of immoral, entitled people, but there are also a lot of people who prefer paying to file-sharing or file-swapping. Lowery’s post suggests a sort of “demand management through ideology”, direct from the artist to the consumer, where moral shaming performs the economic function of interest rate manipulation or a sin tax, with the idea that if artists say enough times that the old model is better for them people will do the right thing and go back to buying CDs and DVDs and never downloading and minimizing their streaming and supporting the old model of advances recouped through sales. But the take-home is that, even if we set aside the old problems with the old models, even if we discount the damage such a trust deficit would do to the market period, that kind of demand management probably just won’t work.

This is because people who use Spotify and other cloud-based streaming services don’t see a moral difference between the subscription fees they pay and buying a CD, or between the advertising on Spotify and that on network TV. They do, however, see the moral problems with the discrepancy between what they pay for a CD and what the artist gets, and with myriad models which primarily enrich a very inefficient infrastructure of middle-men. And they see practical problems with the choice between paying for a CD without instant delivery versus paying for a digital music file that perhaps has a finite lifespan or at least where they’re responsible for backup, especially when cloud-based subscription services offer them instantaneous access to the same music, and much more music, in a model where the restrictions and inconveniences seem better aligned with the cost model.

When physical albums, CDs or vinyl or whatever, were sold as the standard means of buying music, the cost, and value, of the item was based not only on the unique properties of the intellectual, creative content, but also on the physical materials, and most importantly on the control and access that ownership of the physical media gave the purchaser. Owning your own physical copy was the only way to ensure access to what you wanted to listen to, when you wanted to listen to it. A listener without a copy had to wait until the one or two songs that were going to be played on the radio came on, or they had to listen at a friends’ house. If you wanted full access to the content, and full control over when you heard it, you had to buy your own physical copy of the album.

But after digitization, the benefits of owning the physical media largely evaporated, and the exchange telescoped down to focus just on the value of the creative content itself – something which had always been a blurry and opaque percentage of the cost of the material good. In making the physicality of the product obsolete, digitization also made the packaged information vastly more material and tangible.

It’s often pointed out and absolutely true that there’s no material scarcity associated with digital copying – a digital resource is not a limited resource. But material scarcity isn’t as relevant as many people suggest — it’s vastly more relevant that digitization and computing advances made control and access plentiful. This is true for all culture, not just music: I no longer have to watch the Billy Graham Crusade or the Bob Hope Special right along with the rest of America because there are only three channels; I can go to Netflix on Demand and watch a documentary about Africa or a James Coburn movie and if I am the only person in the world interested in that movie at that exact instant, it’s still available to me. There’s no meaningful difference between accessing that material on demand and owning my own copies.

So even though it’s possible to shame people into a better morality, it is not possible to shame people into treating – and paying for – a plentiful commodity as though it is scarce.

This ties into Lowery’s interesting and valid point that we’re more willing to pay for electronic equipment than we are for content. Electronic equipment, though, is still physical, and subject to scarcity. The cost of commodities is a measure not just of their cost of production but also of their exchange value. In situations where the exchange value is insufficient to cover the cost of production, a commodity that it is possible to produce, might not ever actually be produced. You can increase a commodity’s exchange value by increasing people’s willingness to pay for it in some way, but there’s going to be a limit to how much you can talk people into valuing something when they don’t see a direct benefit to them. You can convince people that it’s immoral to not pay anything for music, because you can show them how that affects production. But you can’t convince people that existing, already recorded music is scarce, expensive to produce, and difficult to distribute – because it isn’t.

Why I think David Lowery is dangerous

Lowery’s unwillingness to distinguish between brute file-sharing of copyright material, which is immoral, and paid services like Spotify, which aren’t, obscured the real issues in White’s post and derailed what started out as a really valuable and much-needed public discussion about the impact of streaming and the cloud on the stop-gap download-driven revenue models that have characterized the digital culture economy up to this point. Ignoring that and driving discussion toward the issue of not paying for music, which nobody was arguing against, allowed Lowery to evade the more difficult issues that require greater imagination. He turned a provocative and forward-looking prompt from NPR into an opportunity to push his backward-looking mantra that the digital economy is bad for artists. And the creative sector, emotionally ginned up, kind of let him get away with it.

That’s short sighted. The digital economy isn’t going away just because David Lowery isn’t pleased with it, as both TechDirt’s Mike Masnick and Merlin CEO Charles Caldas point out in their responses to Lowery (linked below). Realistically, artists just have to deal with the digital economy. Fortunately, it’s still evolving enough that there’s time to make sure that the new business model’s not a disaster. But critical energies can’t get distracted — they have to move from primarily talking about fringe models often used for illegal purposes, like the Pirate Bay and Bit Torrent, to serious discussion of legal services like Netflix streaming and Spotify, because those are the models that increasingly will dominate the market. Most people don’t want to steal music. They just want value for their money and convenience.

This conversation is particularly important for books, more so than for music and DVDs, I think, because books do not yet have any kind of viable, widespread subscription or even library-like models. Almost every single book in print was printed from a digital file, yet most books aren’t even available for purchase as ebooks, let alone available to digitally “rent”, borrow, or browse. Google Books has set a dangerous precedent that books online will be free – a precedent that will only be overcome by a viable cloud-based, on-demand model for “print” media. But the publishing industry appears to still be struggling even just with making books available digitally for purchase. This is way behind the curve, and it needs to be pushed into more innovative directions.

Distracting the Internet from a smart discussion about streaming and the cloud by making the conversation about stealing — as Lowery’s response to Emily White does — does absolutely nothing toward resolving those problem; it only creates a false sense of conflict between the tech community and the arts community that is likely to result in reactionary policy that maintains the worst elements of the status quo.

Links

Original post by NPR’s All Songs Considered host Bob Boilen
Blog response by NPR Intern Emily White
Response to Emily White by David Lowery
Response to David Lowery by Gizmodo and the CEO of global rights agency Merlin, which represents 10,000 independent artists
TechDirt’s summary of articles by musicians who disagree with Lowery’s letter to White
Talk by David Lowery at the San Francisco MusicTech Conference in early 2012
Response to David Lowery’s talk at SFMusic by TechDirt CEO Mike Masnick

Do You Have a Right to Piracy?

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Over the last week, a couple of twitterers I follow expressed the opinion that fans don’t have a right to the art they want. Alyssa Rosenberg said “You don’t have a right to HBO.” i.e., that you can’t just steal content because HBO won’t stream it on the internet. And Dan Kanemitsu, in reference to people creating unlicensed manga translations for the Kindle, said that “Having material available quickly & cheaply is not a right.”.

I understand where Alyssa and Dan are coming from, but I think the language of rights here is misleading. In this context, I think it’s worth remembering why we have copyright in the first place. According to the Constitution, copyright is established “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

In other words, the purpose of copyright is not to protect creators. It’s to encourage artistic creation.

One of the main ways it encourages artistic creation, of course, is by giving creators exclusive rights to their creations, so they are encouraged to create them. But it also gives society rights by limiting the extent of creator control. In other words, public domain and fair use and access to art are not just a gift; they’re central to how copyright is supposed to work.

Or let’s put this another way. Think about the Beastie Boys’ “Paul’s Boutique”. The Dust Brothers jacked a lot of samples for that album, most of which they didn’t clear. Did they have the right to do that? Weren’t they just being entitled jerks, thinking they could just walk off with other people’s beats?

Of course, you could argue that having access to HBO or manga isn’t like having access to beats. After all, who’s going to make art out of HBO or manga?

The answer is that lots of people might. A video artist might want to use HBO clips in her piece; a writer might want to read a manga translation to inspire fan fiction. For that matter, reviewers or academics might want to write critical pieces about them. If critical writing is creative (and it is) then how philosophically are such writings different from Paul’s Boutique?

The issue here isn’t that all people have the right to steal any art they want. Rather, the point is, again, that the language of “rights” is a poor way to think about society’s investment in the availability of art.

I think it might be more useful to think of copyright in terms of competing interests. Society has an interest in protecting individual creator monopolies in copyright. It also has an interest in allowing other people access to those creations.

We try to balance those interests in various ways. Currently, we do it by having really restrictive copyright laws foisted on us by our corporate overlords…and rampant and easy piracy made available by the internets. This is not an ideal system in any sense and for many reasons. But would it really be improved if consumers all at once and instantly accepted that they had no right to art, and ceased their infernal piracy? If by “would it be improved?” you mean “would it encourage more creativity?” — then, no, I don’t think that the end of piracy, mash-ups, fan fiction, and more restricted access to art would give us a better, or for that matter a more moral, creative landscape.

I want artists to get compensated for their work. But I wish we could find a way to do that which recognized that society has an interest in making art available to everybody — not least because that “everybody” includes creators.
 

Rorschach, Superstar

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A bit back, Sean Michael Robinson talked about a production of the Diary of Anne Frank that interpolated the music of the Carpenters. Sean noted that the production was wonderful, moving, inventive…and also illegal.

Anne Frank’s words, however, and the translation of her words on which we were relying for much of our text, were a different matter, as was the authorized play (Diary of Anne Frank), which provided much of the rest of the text. All of these elements are still under copyright, and will continue to be so for several years. (In fact, copyright in the theater is more restrictive than in almost any other field. You can, after all, read a book or listen to an album any way that you wish once you’ve purchased a copy–but to publicly perform a play one must conform to a dizzying array of limitations set out by the author or the author’s agents–usually, that every word of the play will be performed, i.e. no cuts or insertions without permission, and that the appearance, gender and even staging etc will honor the stated intentions of the author regarding the script and contract.)

Sean’s prescription — with which I agree, is that we need to rethink our insanely restrictive copyright laws in order to make it possible for people to reimagine older works, and create new ones, without having their asses sued off.

This does bring up a rather uncomfortable issue for me, though. Mainly…if I think that art is built out of other art, and that the copyright laws should reflect that, then what exactly is the deal with my recent article on Slate, where I discuss my deep disgust with DC’s Before Watchmen? After all, as Jones pointed out with his usual logician’s obsessiveness, Alan Moore has ripped off everybody from C.C. Beck to H.G. Wells, and probably other people whose names begin with A, X, Y, and Z as well. If I think high school kids should be able to mash up Anne Frank and the Carpenters, and I think that Alan Moore should be able to mash up Dorothy and Wendy and Alice (which is probably not the best word choice there, but onward), then what exactly is the problem with having DC put out a new! Watchmen! prequel! — or for that matter, a Watchmen toaster? Isn’t there some moral inconsistency here?

Possibly. But let me try to think through the differences.

— First, it’s useful to remember the purpose of copyright. According to our Constitution, the purpose is not to protect creators. The purpose is to encourage art. Copyright is supposed to give creators a monopoly on their own works so that they will have a financial incentive to create those works in the first place. If as soon as you write something, everybody else can publish it under their name, then you’re going to limit the people who will write to hobbyists who don’t need the money. (Not that there’s anything wrong with hobbyists, he says as he writes for free on his blog. The point is just that ideally you want to encourage other kinds of writing as well.)

However. Giving someone an infinite monopoly on their work also limits creation. It makes it hard to comment on older works, or to remix them, or to use them as inspiration for newer works. That’s why copyright is limited; so that works will eventually enter the public domain where they can be used by other artists with no strings attached to make things like League of Extraordinary Gentleman…or what have you.

The point is that there’s no particular contradiction between arguing that, on the one hand, Alan Moore is being screwed, or that, on the other hand, basing a work on Bram Stoker — or even on C.C. Beck — is okay. I’m personally in favor of a copyright of about 50 years from date of publication — which would mean Watchmen would still be under copyright, but that a lot of works Moore has lifted from would not be. A fifty year copyright would also put Anne Frank out of copyright…though not the Carpenters.

— Second, even when works are under copyright, I think there needs to be a vigorous fair use provision. Such provisions can include, for example, flat fees for using music (like the Carpenters) without giving the creator veto power over how or where that music is used (which, yes, would mean that idiotic republican presidential candidates could use Bruce Springsteen’s songs if they wanted even if the Boss objected. I think that’s a reasonable price to pay for a vigorous public domain, personally.) I also think that in situations where there is no profit, as in Harry Potter fan fiction, for example, most bets should be off.

Soooo…again, how is all of this different than DC publishing Before Watchmen…or than Marvel using Jack Kirby’s characters (which are certainly on the verge of my 50 year timetable) without paying him?

Which brings us to my last point.

—The issue with DC and Marvel is not that they are creating new work using somebody else’s characters. As I’ve suggested, artists do such things all the time; it’s a big part of how art is made. Without it, we wouldn’t have Shakespeare, much less Alan Moore.

So the issue with DC and Marvel isn’t use of the characters. The issue is, specifically, lousy business practices. Moore and Kirby never got to exploit the copyright for the characters they created; instead, Marvel and DC used crappy contacts, evil industry practices, and disproportions of power to gain the benefits of the law for themselves. So it’s not that Marvel and DC shouldn’t use those characters. It’s that they shouldn’t be able to reap a monopoly windfall for using those characters based on dubious business practices.

And, in a bitter but by no means isolated irony, the excessively insane draconian provisions of our copyright law mean that the creators are actually much more extensively screwed than they would be if copyright were reasonable. If copyright were only 50 years, Marvel would be in the process of losing its rights to its properties one by one — which would mean that anybody could make a Spider-Man movie or an Iron Man movie, which would make Marvel essentially worthless, which would mean it would go out of business — which wouldn’t benefit the Kirby family financially, of course. Still, you’d think his ghost would at least get a kick out of it.

In any case, the point is: the creators working on Before Watchmen are not despicable because they are using someone else’s art to make art, because that’s what all artists do. They’re despicable because they are knowingly helping DC exploit a monopoly that was obtained by fucking over the people who created it — and because one of those fucked over creators has verbally erected the equivalent of a picket line. Hughes, Straczynski, Cooke, et. al. are not thieves. They’re scabs. I hope that’s a comfort to them.
 

Sublime Capital, Kirby, Lee, the Worth and the Worthy

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I began writing this piece before the announcement of the depressing verdict in the case between the Estate of Jack Kirby and Marvel Comics and by consequence Stan Lee. In the simplest terms, Marc Toberoff, the Kirby Estate’s lawyer claimed Kirby was the originator of all the properties in question. Toberoff’s strategy was the same as that he deployed for the heirs to the Superman creators Jerome Siegel and Joseph Shuster in their fight to reclaim copyrights from DC Comics, a division of Warner Brothers Entertainment. He lost. Even the most ardent Kirby fan acknowledges that for a while the two men, Kirby and Lee, collaborated comfortably to produce seminal comics in the American canon and all but a few claim that to make Kirby the sole creator across the board is not defensible. The Kirby lawyers overstepped the mark in the attempt to regain control of early copyright and collect remuneration for the proceeds from early works that were subsequently developed. For those of us on the sidelines, perhaps more painfully the result legally diminishes Kirby’s place in history.

All parties have been less than candid in their presentations.There is plenty of blame to go around, which I am forced to say even as an artist and long time supporter of the Kirby camp. The result of this case will affect all who deal in creative and intellectual property, whether literary or otherwise and unfortunately the Kirby lawyers mishandled what should have been a landmark case in the protection of creative properties.

Some suggest that Kirby himself signed his rights away when he agreed to create as “work for hire,” but I would point to a parallel in the music industry where early recording artists similarly originally gave up their rights. They later won cases to reclaim them because they could not have foreseen the new media that would offer alternate distribution platforms and uses for their creative property. Contract law, which to validate any agreement depends on a “meeting of the minds,” might be applied as Kirby could not reasonably have imagined the rapidity and growth of media technology. Kirby though often accused of having an overly vivid imagination when it comes to Sci-fi, was not actually clairvoyant.

The shambles that has ensued after Lee’s courtroom default from history because of his contractual and financial allegiance to the company leaves the creative world a sadder place. Revisionist history diminishes all. This dispute between artist and Marvel is sublime in its scope. The immense edifice of the corporation dizzies the individual.

The team's creative frisson as written by Jack Kirby from Fantastic Four Annual 5, 1967.

Another aspect of this debate, which has become so reductive in its claims of creative primacy, suggests that the idea is the only criteria for original creation. Even if hypothetically Lee originated characters, I would argue that where there is no previous model then the artist creates the image and reifies a concept. If there is no model to work from, then one must create the original figure, which henceforth will become that model. Pushed to a logical limit, one could point to the fact that though Bernini did not originate the myth of Apollo and Daphne, he certainly produced his original sculpture. His rendering of the narrative is creatively unique.

Apollo and Daphne by Bernini

On the other hand, in the consideration of the various statues of “David” created by numerous artists, Donatello, Michelangelo and Bernini for example, one might say that these are all “works for hire” and only the divine source of the narrative is significant, with the plot supplied by the church. The church, like any other giant institution or corporation has interests in controlling its mythologies. This labor, artistic or not is at the service of a larger ideology.

Donatello's David offers a model sheet in 3D.

As Louis Althusser, a psychology-driven sociologist  says, “assuming that every social formation arises from a dominant mode of production, I can say that the process of production sets to work the existing productive forces in and under definite relations of production.” I shall return to Althusser momentarily, but for now I wish to affirm that both Kirby and Lee were proud to work within the ideology of American capitalism. In the legal case, neither side stands or challenges American capitalism on ideological grounds overtly, despite a strong undertow of class and labor issues that largely go unspoken. And while I have framed many of the issues within the sphere of artistic production, certainly both Kirby and Lee saw themselves in the business of selling comics. Elsewhere, Althusser helpfully casts light how problems might arise undetected by two men who had not only served in the military as a system of American ideology, but had become a part of the means of  production for that ideology.

Ideologies are perceived-accepted–suffered cultural objects, which work fundamentally on men through a process they do not understand. What men express in their ideologies is not their true relation to their conditions of existence, but how they react to their conditions of existence; which presupposes a real relationship and an imaginary relationship.

Kirby perhaps presupposed himself a participant in a post WW2 America that had fought and earned the right to play fair. He imagined that a handshake would suffice as he saw himself a part of an institution that in reality would later belittle his role. Lee working in a family business, saw himself as management rather than worker and this self-elevation transferred to how he interpreted his creative relationship, which gave more import to words, as though they signified his class and its rights and its sanction.

In comics, men of words hire men of images. The historical system of patronage is codified by capitalism and is supported by critics who use words and instinctively “read” comic text as though it is merely supported by images that stand in for verbal metaphors. In the arena of commercial art, class ties to and debases visual literacy and text reigns supreme. (Comics are annexed from Art History, which might disrupt labor relations by elevating the artist in relation to the writer. This would threaten an instiutionalized ideology in which the journeyman artist is kept in his imaginary place.)

Terry Eagleton expresses another intersecting perspective that helps illuminate how the comics industry positioned itself in a self-perpetuating Western capitalist society:

‘Mass’ culture is not the inevitable product of ‘industrial’ society, but the offspring of a particular form of industrialism which organizes production for profit rather than for use, which concerns itself with what will sell rather than with what is valuable.

Kirby and Lee became engaged in a culture that conflated their cultural output with their commercial product. Their value as artists was secondary to their commercial potential. This is a trap that concerns all work in the arts and in scholarly fields as the pressure to deliver a “product” can easily obscure the “value” of one’s work. Kirby and Lee worked within let us say, “popular” culture and there were undoubtedly certain sacrifices to deadlines. However it would be difficult to imagine that either worked deliberately below his potential “in the definite relations of production” of their industry and society.

Longinus on Where Words Count, Stan Lee as a Prince of Rhetoric.

I had intended with the second in my series about the sublime and comics to return to the (fragmented) work of Longinus to help elucidate the relationship between Kirby and Lee. Longinus, a Greek teacher of rhetoric or a literary critic who lived in the 1st or 3rd century AD, wrote a treatise “On the Sublime,” which discusses language in relation to the production of the sublime. His observations, which are delivered in the form of a letter, in fact represent the underpinnings of a textbook of advice for the writer and probably speechgiver, on the creation of sublime text, though much of this latter advice is lost. His interest is in identifying and delineating the elements of writing that operates in the presence and construction of sublime language and pointing out the pitfalls that can derail the would-be rhetorician. He offers:

The Sublime leads the listeners not to persuasion, but to ecstasy: for what is wonderful always goes together with a sense of dismay, and prevails over what is only convincing or delightful, since persuasion, as a rule, is within everyone’s grasp: whereas, the Sublime, giving to speech an invincible power and [an invincible] strength, rises above every listener.

Longinus further says the sublime rhetoric of the speech-writer resides in “great thoughts, strong emotions, certain figures of thought and speech, noble diction, and dignified word arrangement,” which might also begin to expose possibilities in the interactions between words and ideas in comics. All of these elements one would hope to discover in the pages of a heroic narrative of the superhero comics, but might be particularly explicit in a production such as Jack Kirby and Stan Lee’s “Thor.”

When I presented the Kirby /Lee “Thor” page in my previous discussion of the sublime, I did not address how the notes in the outside borders written in Jack Kirby’s hand might inform the final text/speech in the finished word balloons written by Stan Lee. Here on face value, it appears as though the initial “ideas” and their visual rendition come from Kirby, but are reconfigured by Lee. Lee’s diction transforms Kirby’s side notations with amplified language and words that are of a suitable weight to match the visual narrative and content. This is achieved as he uses repetition and emphasis to create a heightened language that inspires and moves the reader. Thor and his cohorts never articulate outside of their quasi-archaic parlance.

For the reader, the strange tone and historicity add weight to the narrative. This language is that of great men doing great things. Most of us as youth ( although I except that somewhere there are probably religious groups who still use the “thee” and “thou” of second person singular ) only experience this type of highly wrought diction in the formal realm of “literature,” as in Will Shakespeare and John Donne, or in the script of the Bible. Lee’s écriture, the grammar of which delightfully and frequently deviates from recorded “English” & its real variants is meant to be understood as a heroic language and it is Lee’s generosity of style that allows the reader to formulate this language internally in his or her own linguistic terms. In other words, one is able to participate imaginatively in the construction of the characters’ syntax and diction. Further, the reader is able to engage and even deploy the system of language, to think without fear of error within the construct of Lee’s linguistics. The effect would be comical beyond its acceptable level of dramatic kitsch if the entire comic were to be spoken in Kirby’s New York slang circa the Bowery Boys. As the language is transformed by Lee it is able to support its authority within the ideological tenor of received historicity.

All the same can one say that Lee is dangerously close to the ridiculous, but that as children this giant nuance escapes us? Perhaps his flexible English reinforces an independent American ideology and the desire to escape from the vestiges of British ligusitic tyranny, or to become a “noble” American writer.

 

 

 

 

 

 

 

 

 

In the border notes in Kirby’s recognizable hand, “Thor says – I’ve heard tales of it – well—let em come,” written clearly in the American mid-century vernacular. This  is transformed by the rhetorical skills of Lee who gives: “The Enchanter from the mystic realm of Ringssrjord!…It has long been prophesied that they would one day strike at the very core of Life itself where Asgard doth hold reign!” Issues of class manifest themselves in the “superior,” declarative language of the Gods. The vernacular of Kirby’s voice must be corrected to reflect that of the upper class heroes.

Both men recognize their own class in relation to the content. Kirby, who remained proud of his heritage as the son of a Lower East Side immigrant, does not write his text in “Thor-speak” but uses his working class action voice to express his ideas. This forces questions about how class operated between the men. Implicitly, art is produced in a strangely abased position in the social hierarchy of production. Art appears to be the tool of the intuitive, untamed mind, while writing evidences intellectual precision and authority. Logocentrism is bound to class structures and it seems Thor-speak claims the authority of the noble class and that its writer represents a conduit to this class with its values of duty and honor. Remember as Longinus says: “The great speech maker speaks great thoughts.”

In his essay “Ideology and Ideological State Apparatuses,” Althusser suggests capitalist society reproduces the relations of production in such a way that this reproduction and the relations derived from it are obscured. Capitalist exploitation hides its presence from direct sight, but the ideology of capitalism, which is imaginary, interpellates us in such a way that we recognize our place in that ideology and accept the rightness of it. This occurs through a series of erroneous recognitions and assumptions that follow a fallacious logic… It must be so because it must be so, right is right and so forth. Althusser’s explanation of this process runs:  Ideology calls out to (or hails, interpellates) individuals. A (metaphorical) illustration of this: Ideology says, “hey, Joe” and Joe responds, “Yes?” In doing this, Joe recognizes himself via ideology, situates himself in the position it tells him he is in. Since he knows he is, in fact, Joe, just like Ideology says he is, ideology seems natural and obvious, not ideological.

Kirby scripts Stan Lee's dialogue as Funky Flashman with Scott Free in Mister Miracle 5, November 1971.

In the panels above, Funky Flashman tries to manage Scott Free, who suggests that they collaborate on a mutual enterprise. Flashman internalizes and operates within the ideological system, even as he toys with transgressing boundaries which he would like to assault through language.  Further, he uses words as a device of control, he does not recognize his own position within the ideology.  Flashman describes how his words elicit emotion and comprehends this advantage as one of power. He ironically recognizes himself as a subject and self-imposes through pleasure and duty his own imaginary inherited desire to work. “Oh I feel it the terrible, self-fulfilling call to work!! The song in my blood that says “Work Funky!!! Work and be productive!”

Kirby as the writer of this text, lampoons the writer, a thinly-veiled depiction of Lee, and frames Flashman as an effete, decadent. But his mockery does not release either from the cycle of production. Althusser states that free will is essential for this continual state of self-delusion (false consciousness) to persist. The subject must feel that he is free to act as he chooses, but his self recognition within the social structure ensures that he will continue to be productive and remain within an ideology that he believes he has created and sanctioned. As we read comics we are identifying ourselves as within an ideology. Whether as adult readers we see comics as escapist “lower” literature, a developing underserved art form, or we read them as kids and adults who internalize their ideological positions, we recognize a cultural production when we look at and read a comic and as such we have agreed to become part of the Ideological State Apparatus.

Althusser suggest that capitalism is held in place by Repressive State Apparatuses (RSA), the Law and State. As in Marx, Althusser posits that a superstructure of political and legal repressive systems stands on an economic infrastructure with repressive state edifices (RSA) supported in turn by Ideological State Apparatuses (ISAs). ISAs are found in the educational system, the religious system, the family, the cultural systems of literature, the arts, sports. While the RSA controls by force, the ISA functions through promises and seduction. Althusser suggests that education is the dominant ISA, because school teaches “know-how” wrapped in the ideology of the ruling class which enbles the subject to adhere to their role in class society.  Althusser further notes that children are given into the hands of institutions of education to be indoctrinated for years, from pre-k -til…well some of us never leave.

Without making this a full blown discussion of Althusser, one can draw from his position the idea that a subject freely submits to subjugation through ISAs. The Flashman and Scott Free passage points to the irony of the belief in “work” creative or otherwise, yet simultaneously recognizes the value of work as inherently worthy. Scott Free promotes a silent acceptance of the workingman’s role, while the entitled Flashman proclaims about the difficulties of creative work.

As readers of this passage we willingly accept the need to fulfill our role as workers, even as we privilege class and even as we admire the nobility of the work ethic.  Intriguingly, as readers we willingly identify with Scott Free, the self-recognized “actual” worker and accept an appellation that sets us within the mythologization of honorable worker. The comic book here is an ISA, by which we willingly reinforce statifications of class and labor, which directly maps on to how we prioritize text over image.  The debate that surrounds Kirby and Lee slips past any consideraton of equality of medium into issues of class and artistic stratifications.

Colonel Corkin’s Sublime Call to Capitalism.

Elsewhere the rhetorical power of comics literally moves from the page into the Congress as the wartime Terry and the Pirates’ Colonel Corkin speaks to his young charge a speech of such sublimity that it moves the reader who cannot help but respond to the noble sentiments expressed. This at least is the opinion of  the Hon. Carl Hinshaw of California, who addressed the House of Representatives on Monday. October 18, 1943. Here the comic is celebrated as a vehicle of ideological repression.  Hinshaw s remarks follow thus:

Mr. Speaker, I have long been addicted to scanning the so called comic strips that appear in our daily and Sunday papers. I have followed the careers of the characters, such as Uncle Walt and Skeezix, Little Orphan Annie, Sgt. Stony Craig, and others for many, many years. Among these characters the most interesting and exciting of them all are Terry and Flip Corkin. On yesterday, Sunday, October 17, Milton Caniff, the artist, presented one of the finest and most noble of sentiments in the lecture which he caused Col. Flip Corkin to deliver to the newly commissioned young flyer, Terry.  It is deserving of immortality and in order that it shall not be lost completely, I present it wishing only that the splendid cartoons in color might also be reprinted here. The dialog follows:

Milton Caniff's Terry and the Pirates moves from ISA to RSA.

It is primarily the dialogue that counts for the Congressman, though he responds to the overall novelty of the cartoon and its sentiments. In the comic, the uniformed, everyman hero reaches a sublimity that moves beyond the “normal” linguistic constraints of his class. Spurred by duty and patriotism Colonel Corkin is able to raise his diction to one that moves and inspires. He is sublime. His speech to Terry through the vehicle or mechanism of heroic diction outlines Terry’s place in the system of production as a part of “something” larger. The passage offers an ideological rationale for capitalism, through the aegis of classical values. Honor and glory inform one’s duty to engage the state as a function of the larger industrial war complex. All of which alerts the reader to the ability of cultural institutions to move into the service of instruments of state repression. In panel nine, the drawing reproduces a government logo, a trademark of America the corporation, which supports the text. Terry the innocent, is educated by the Platonic wisdom of Colonel Corkin in an easily recognizable trope of “high class” wisdom. In the last panel, Terry walks in the direction indicated by the textual sign: “This way to Tokyo, Next stop U.S.A.” His hands are bound in the constraints of his pockets in a self-imposed gesture of submission and passivity.The sublime language moves us into alignment with the government position which not only requires courage in the face of adversity (the merits of WW2 are not in question here,) but also requires  that structures of class are concretized and accepted in order for Terry to behave  honorably.

The depth of the RSA's gratitude.

“On April 3, 1989, on the first anniversary of Caniff’s death, the Air Force officially discharged Steve Canyon from the service and presented his United States Air Force discharge certificate, service record, flight record, personnel file, and this shadowbox featuring Canyon’s service medals to the Caniff Collection at The Ohio State University.”

Originally, before the Kirby /Marvel result, I had intended to offer this passage about “Terry and the Pirates” as evidence of  the power of the sublime as a political tool and to discuss the slippery parameters of cultural institutions and government bodies.  I wanted to interrogate how diction in comics elevates or otherwise shapes response and meaning.  In the end, the colonization of the Colonel Corkin speech by a government representative suggests that elevated diction is recouped by the ruling class, even in the ambigous guise of applause. Rhetoric, especially sublime rhetoric is a commodity like any other; it is a currency in the capital of the state and its many means of self-reproduction. For the moment, the comic image is undergoing the same recoupment as its rhetorical counterpart. Its value and its final place in American ideology will continue to be down played until its full financial worth can be ascertained. The constantly evolving new medium of technology and the fiscal world of “not as yet ripe for deals to be sealed” offers a climate of uncertainty for those who would capitalize the image.

Kirby ‘s work cannot be valued: the market is not ready.

 

Sunday Funnies

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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

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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….

Put ’em together and what have you got?

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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.”