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River Tam beats up everyone: my daughter, yesterday.
Peter Decherney, Hollywood’s Copyright Wars: From Edison to the Internet: Decherney, who not incidentally was instrumental in achieving the first context-specific exemption for ripping DVDs (for use in teaching film studies), has a sharp eye for the way the movie industry has exploited and reacted to law as part of its business models over time. He suggests that the usual reaction of the industry to legal rulings has been self-regulation either to confirm or to avoid the formal law, depending on what works best for the guys in charge. The relationship between technological measures designed to prevent copying and unauthorized copying, for example, goes back to the start of moviemaking, when different producers used film with different sprocket holes; the incompatibility led people who wanted to show movies to make their own copies to fit on their own equipment, just as it still does today.
Early in the movies’ history, it was unclear whether the performances therein qualified for copyright, either because they weren’t considered sufficiently dramatic or because they were perhaps immoral—as is consistently the case with copyright, sex confounds the law. It was also unclear who was responsible for a recorded performance, assuming that infringed someone else’s right; in one important case, a film company claimed that it wasn’t responsible for infringing the novel Ben-Hur because it had merely filmed a chariot race staged by the Brooklyn Fire Department—apparently the novel sparked a vogue for such recreations; fandom is everywhere!
Later, studios fought with directors over artistic control. When films were first being edited for television broadcast, critics often worried over their “emasculation,” a loaded word indeed. As Decherney points out, the passage of time turns outrages against art into high art; just as directors for years fended off charges that they were mutilating novels and plays in their adaptations, now directors became believers in the inviolability of their own art.
Hollywood’s history with copyright law is full of these ironies, including the studios’ fear of the VCR that ultimately brought them great riches (Decherney notes that Disney, one of the great opponents, was a niche studio until the profits enabled by videotape sales gave it the capital to fund its next great wave of films).
More recently, Decherney argues, the 1970s avant-garde developed in the context of various assumptions about what could legitimately be done, especially with music. Even when these assumptions didn’t exactly follow the law, they shaped behavior. “Underground” works were ignored by copyright owners, but still used music cautiously, and their makers licensed rights in order to show them at international festivals or on TV. Kenneth Anger’s “avant-garde classic Scorpio Rising (1964) … freely used old film clips, advertisements, and cartoons. Some viewers were shocked by the sexual situations depicted in the film. Many filmmakers were more surprised by Anger’s flagrant use of popular music to create counterpoint and commentary. Anger’s 30-minute film used a ‘wall-to-wall’ string of poular hits ….” What they didn’t know was that Anger had actually cleared the rights for the songs (though apparently for nothing else); it more than doubled his budget and cost more than the total budget of most avant-garde films. Martin Scorcese watched and was shocked—his NYU professors had always told him not to use music in a student film. He said: “That gave me the idea to use whatever music I really needed.” While the gatekeepers enforced the rules on music, setting the fair use options at zero, Scorcese decided to use unlicensed music in his own student films, which got him ready to make breakthrough uses of music, this time licensed, in his later feature films. Among the complicated lessons here is that “misinformation can be as powerful as accurate information.”
Decherney also tells the story of the unusual case in which experimental video was suppressed by copyright owners: Todd Haynes’s 1987 Superstar: The Karen Carpenter Story, blocked not by Mattel but by Richard Carpenter. Haynes decided to proceed without licensing the music—based in part on his beliefs about Scorpio Rising--but was ultimately forced to stop allowing it to be shown. Of course, this all made Superstar more attractive as a bootleg, and it’s still pretty easy to find. Haynes’s story created its own myths about copyright and trademark overreaching among filmmakers, even though Decherney didn’t find any other instances of such legal threats until the rise of online video sites like YouTube. Hollywood in general hasn’t been very aggressive about pursuing self-proclaimed video artists, in part, Decherney suggests, because the law of fair use is “underdeveloped and highly unpredictable” in this area, as well as because the economic harm is realistically nonexistent and the public relations risks real.
YouTube was a disruptive technology not because it created a video-sharing culture; plenty of people were primed to share their videos already. Instead, Decherney suggests, YouTube brought a number of different videomaking cultures—and their expectations around copyright and fair use—into contact and occasional conflict, and made them all more visible to each other and to copyright owners. “The fans, avant-garde artists, home video makers, and other fair use communities had spent decades learning when they should worry about attracting the attention of copyright holders…. They all became subject to increased surveillance, and their cultures of fair use were homogenized as large media companies sought one-size-fits-all solutions to employing the DMCA to control copyright infringement.” (And the OTW gets a shout-out for its advocacy, yay!)
Kembrew McLeod & Peter DiCola, Creative License: The Law and Culture of Digital Sampling: Surveys the law and practice of sampling in music (mostly rap and experimental music), and argues that it’s not working very well except for people who are well-connected and able to pay a lot of money. If you have a good relationship with key people, you can often get a sampling license; otherwise, not so much—crony capitalism or way of the world? (164-65) Sampling can also cause problems of “stacking,” where one party asserts rights to the new work, which then gets incorporated into another new work, until the ownership is so dispersed that it’s impossible to go on. A recent story about a lawsuit over a rap video/karaoke game shows how this creeps out into the broader universe of audiovisual works, not just intefering with recorded music.
Things I noticed: critics of the value of sampling/remix often talk about the convenience/ease/lack of creativity in doing it, devaluing the huge amount of work (women’s work, in vidding and fandom) that is actually involved. “The Beastie Boys and the Dust Brothers would … painstakingly sync each of the other loops up with the first one, spending hours getting the layers to sound good together. It was a laborious process … ‘ … [Y]ou typed the track numbers into this little Commodore computer hooked up to the mixing board. And each time you wanted a new track to come in, you’d have to type it in manually. It was just painful. It took so long. And there was so much trial and error.’” Likewise, the work involved in compilation was both arduous and creative: “Not only was it time consuming to put the parts together, the search for musical materials was also laborious.” Of course, what counts as creativity is often a matter of power. For example, the authors point out that Western songwriting traditions devalue rhythm, so that songwriting credit and control is allocated based on melody and lyrical content, while what’s sampled is often rhythm, meaning that the people who get compensated for samples are less likely to have contributed their creative value.
A workaround to sampling is having the original musical work replayed, which avoids the need for the more-difficult-to-get sound recording license. What’s interesting is the valuation that treats a replay as a nearly perfect substitute for the original recording: this is a workaround for capturing the sound itself, but not for capturing the history/community around the sound recording. Relatedly, the authors treat a work as “complex” if it’s created with a bunch of samples, rather than looking to the complexities of meaning too. So the authors recognize one potentially positive consequence of the difficulty of sampling within the record industry as pushing sampling “even farther into more complex transformations and collages,” which here means distortions and changes that make the original sound unrecognizable, using fragments that are undetectable by the listener.
I was also interested to see technique bleed—one of the overall lessons of creativity research is that innovation often comes from applying techniques of one field to another field’s problems. Public Enemy “wanted ‘to blend sound. Just as visual artists take yellow and blue and come up with green, we wanted to be able to do that with sound.’ Hank Shocklee adds, ‘We would use every technique, no different than in film—with different lighting effects, or film speeds, or whatever. Well, we did the same thing with audio.’”
Peter Decherney, Hollywood’s Copyright Wars: From Edison to the Internet: Decherney, who not incidentally was instrumental in achieving the first context-specific exemption for ripping DVDs (for use in teaching film studies), has a sharp eye for the way the movie industry has exploited and reacted to law as part of its business models over time. He suggests that the usual reaction of the industry to legal rulings has been self-regulation either to confirm or to avoid the formal law, depending on what works best for the guys in charge. The relationship between technological measures designed to prevent copying and unauthorized copying, for example, goes back to the start of moviemaking, when different producers used film with different sprocket holes; the incompatibility led people who wanted to show movies to make their own copies to fit on their own equipment, just as it still does today.
Early in the movies’ history, it was unclear whether the performances therein qualified for copyright, either because they weren’t considered sufficiently dramatic or because they were perhaps immoral—as is consistently the case with copyright, sex confounds the law. It was also unclear who was responsible for a recorded performance, assuming that infringed someone else’s right; in one important case, a film company claimed that it wasn’t responsible for infringing the novel Ben-Hur because it had merely filmed a chariot race staged by the Brooklyn Fire Department—apparently the novel sparked a vogue for such recreations; fandom is everywhere!
Later, studios fought with directors over artistic control. When films were first being edited for television broadcast, critics often worried over their “emasculation,” a loaded word indeed. As Decherney points out, the passage of time turns outrages against art into high art; just as directors for years fended off charges that they were mutilating novels and plays in their adaptations, now directors became believers in the inviolability of their own art.
Hollywood’s history with copyright law is full of these ironies, including the studios’ fear of the VCR that ultimately brought them great riches (Decherney notes that Disney, one of the great opponents, was a niche studio until the profits enabled by videotape sales gave it the capital to fund its next great wave of films).
More recently, Decherney argues, the 1970s avant-garde developed in the context of various assumptions about what could legitimately be done, especially with music. Even when these assumptions didn’t exactly follow the law, they shaped behavior. “Underground” works were ignored by copyright owners, but still used music cautiously, and their makers licensed rights in order to show them at international festivals or on TV. Kenneth Anger’s “avant-garde classic Scorpio Rising (1964) … freely used old film clips, advertisements, and cartoons. Some viewers were shocked by the sexual situations depicted in the film. Many filmmakers were more surprised by Anger’s flagrant use of popular music to create counterpoint and commentary. Anger’s 30-minute film used a ‘wall-to-wall’ string of poular hits ….” What they didn’t know was that Anger had actually cleared the rights for the songs (though apparently for nothing else); it more than doubled his budget and cost more than the total budget of most avant-garde films. Martin Scorcese watched and was shocked—his NYU professors had always told him not to use music in a student film. He said: “That gave me the idea to use whatever music I really needed.” While the gatekeepers enforced the rules on music, setting the fair use options at zero, Scorcese decided to use unlicensed music in his own student films, which got him ready to make breakthrough uses of music, this time licensed, in his later feature films. Among the complicated lessons here is that “misinformation can be as powerful as accurate information.”
Decherney also tells the story of the unusual case in which experimental video was suppressed by copyright owners: Todd Haynes’s 1987 Superstar: The Karen Carpenter Story, blocked not by Mattel but by Richard Carpenter. Haynes decided to proceed without licensing the music—based in part on his beliefs about Scorpio Rising--but was ultimately forced to stop allowing it to be shown. Of course, this all made Superstar more attractive as a bootleg, and it’s still pretty easy to find. Haynes’s story created its own myths about copyright and trademark overreaching among filmmakers, even though Decherney didn’t find any other instances of such legal threats until the rise of online video sites like YouTube. Hollywood in general hasn’t been very aggressive about pursuing self-proclaimed video artists, in part, Decherney suggests, because the law of fair use is “underdeveloped and highly unpredictable” in this area, as well as because the economic harm is realistically nonexistent and the public relations risks real.
YouTube was a disruptive technology not because it created a video-sharing culture; plenty of people were primed to share their videos already. Instead, Decherney suggests, YouTube brought a number of different videomaking cultures—and their expectations around copyright and fair use—into contact and occasional conflict, and made them all more visible to each other and to copyright owners. “The fans, avant-garde artists, home video makers, and other fair use communities had spent decades learning when they should worry about attracting the attention of copyright holders…. They all became subject to increased surveillance, and their cultures of fair use were homogenized as large media companies sought one-size-fits-all solutions to employing the DMCA to control copyright infringement.” (And the OTW gets a shout-out for its advocacy, yay!)
Kembrew McLeod & Peter DiCola, Creative License: The Law and Culture of Digital Sampling: Surveys the law and practice of sampling in music (mostly rap and experimental music), and argues that it’s not working very well except for people who are well-connected and able to pay a lot of money. If you have a good relationship with key people, you can often get a sampling license; otherwise, not so much—crony capitalism or way of the world? (164-65) Sampling can also cause problems of “stacking,” where one party asserts rights to the new work, which then gets incorporated into another new work, until the ownership is so dispersed that it’s impossible to go on. A recent story about a lawsuit over a rap video/karaoke game shows how this creeps out into the broader universe of audiovisual works, not just intefering with recorded music.
Things I noticed: critics of the value of sampling/remix often talk about the convenience/ease/lack of creativity in doing it, devaluing the huge amount of work (women’s work, in vidding and fandom) that is actually involved. “The Beastie Boys and the Dust Brothers would … painstakingly sync each of the other loops up with the first one, spending hours getting the layers to sound good together. It was a laborious process … ‘ … [Y]ou typed the track numbers into this little Commodore computer hooked up to the mixing board. And each time you wanted a new track to come in, you’d have to type it in manually. It was just painful. It took so long. And there was so much trial and error.’” Likewise, the work involved in compilation was both arduous and creative: “Not only was it time consuming to put the parts together, the search for musical materials was also laborious.” Of course, what counts as creativity is often a matter of power. For example, the authors point out that Western songwriting traditions devalue rhythm, so that songwriting credit and control is allocated based on melody and lyrical content, while what’s sampled is often rhythm, meaning that the people who get compensated for samples are less likely to have contributed their creative value.
A workaround to sampling is having the original musical work replayed, which avoids the need for the more-difficult-to-get sound recording license. What’s interesting is the valuation that treats a replay as a nearly perfect substitute for the original recording: this is a workaround for capturing the sound itself, but not for capturing the history/community around the sound recording. Relatedly, the authors treat a work as “complex” if it’s created with a bunch of samples, rather than looking to the complexities of meaning too. So the authors recognize one potentially positive consequence of the difficulty of sampling within the record industry as pushing sampling “even farther into more complex transformations and collages,” which here means distortions and changes that make the original sound unrecognizable, using fragments that are undetectable by the listener.
I was also interested to see technique bleed—one of the overall lessons of creativity research is that innovation often comes from applying techniques of one field to another field’s problems. Public Enemy “wanted ‘to blend sound. Just as visual artists take yellow and blue and come up with green, we wanted to be able to do that with sound.’ Hank Shocklee adds, ‘We would use every technique, no different than in film—with different lighting effects, or film speeds, or whatever. Well, we did the same thing with audio.’”
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Thanks for posting about the copyright issues. Very interesting!