Steal This Column

Greetings! Nice to be back here at NewMusicBox for my first post of 2008—the Year of the Mouse (or in my case, trackpad). Looks like my travel schedule will not abate at all in the year to come, so watch out for reports filed from Thailand, Italy, France, and Texas, as well as the usual postings from Tokyo and LA.

Toward the end of last year, I got pointed to an interesting and provocative lecture given by Lawrence Lessig. Lawyer, Stanford professor, authority on copyright issues, and the CEO of Creative Commons, Lessig tells a number of stories that touch on historical issues of ownership and license, and then brings these into a contemporary digital context and makes some provocative arguments about content and ownership in the digital age. I think these arguments, whether you agree with them or not, whether you work in a digital medium or not, need careful consideration. Please take a look.

The talk was given in March 2007 at a conference called TED (“Technology, Entertainment, Design”) and met with a most enthusiastic response from the attendees. Later, however, some critical comments began to emerge on the web. Salvador Leyva harshly conscribed calling mash-ups “original” and “cutting-edge artistry” as “Orwellian nomenclature”. Max Hodges conflated creative re-use with piracy when he said “Larry Lessig…doesn’t address any of the downside of pirates, copyright violators, and rip-off artists. He seems to only take the position that it’s just good clean fun, but it can be extremely disconcerting for artists and musicians to find their work copied and distributed en masse and not for the fair-use purposes of critical review or parody but just because its easier to steal than to properly license a work.” Steve Jones tried to draw a distinction when he said, “There is more and more computer-assisted cleverness manifesting itself now that is being mistakenly referred to as creativity.”

Lessig celebrates “amateur culture,” where people produce for the love of what they are doing and not for the money. Is this the whole story? Where does that leave professionals, those of us who seek to be in the happy position of actually making a living doing what we love? I for one found it interesting that Lessig seems to think that the whole notion of appropriation has been enabled (not just furthered) by digitalism. As a composer whose work often uses found and even appropriated materials, I and others (e.g. Christian Marclay, John Oswald, Otomo Yoshihide, Nic Collins) had been dealing with these issues in a markedly analog world more than twenty years ago—and that’s not to mention historical pioneers like James Tenney.

As so many of you are working in music professionally, I am keen to know your reactions to Lessig’s talk and the issues he raises. He makes an oblique and sly reference to his own organization, Creative Commons, which has been working diligently to responsibly establish new ground rules for re-use of intellectual property in a digital world. Lots of good information about that at creativecommons.org. Is Creative Commons the best solution?

Your thoughts, as always, are invited.

21 thoughts on “Steal This Column

  1. rlainhart

    Carl: it seems to me that all these arguments in favor of appropriation ignore a couple of simple points:

    First, the ethical one: If you take something from someone who wants to give it to you, you receive a gift. If you take something from someone who doesn’t want to give it to you, you steal.

    Second, the practical one: if your art is based entirely on appropriating and reworking the original work of others, what will you do when there is no longer any original work to appropriate and rework?

    For myself, I agree that appropriation can result in viable and creative art, but I think there are levels of creativity here. I’ve always felt that someone who creates original work from nothing is, in general, more creative than someone who can’t create without building on the pre-existing work of others.

    And so I feel that, in general, painters are more creative than photographers, animators more creative than filmmakers, musicians more creative than DJs. And I think it better to more creative than less so.

    Reply
  2. Trevor

    I’ve always felt that someone who creates original work from nothing is, in general, more creative than someone who can’t create without building on the pre-existing work of others.

    Isn’t it just a different type of creativity though? I can’t in any way objectively correspond what youre saying to famous “quoters” in music, like Crumb, Mahler, Public Enemy, The Roots, etc. I find the creativity of all of them to be top notch. Not to mention the rampant way in which plainchant was appropriated by Liszt, Rachmaninoff, almost anyone who has written a requiem or mass, the guy who wrote the music to Gremlins 2…

    (…maybe the last one isn’t such a good example…)

    All composers deliberately limit their materials in some way, and I dont see how relying on pre-recorded sounds is different than, say, relying on 12 equally spaced notes. I’ll stay out of the ethical side of the debate for now, however…

    Edit: And of course those who use folk based materials in their work, from Bartok to Chen Yi to Franghiz Ali-Zadeh …

    Reply
  3. rlainhart

    Isn’t it just a different type of creativity though?

    Sure. All artists appropriate to some extent – everyone builds on the past to some degree. It’s those degrees I’m referring to. And I don’t feel that someone who takes two tracks and mashes them together, or builds an entire song from an unaltered 8-bar sample from a 70s soul record, is demonstrating the same degree of creativity as someone who creates a new sound from nothing.

    I create electronic music almost exclusively, and I think that one of most important goals in creating electronic music is original sounds. Much of what has come to be called electronic music these days has lost sight of that, I feel, and I think it’s a shame. I see that as a direct consequence of the culture of appropriation.

    Reply
  4. William Osborne

    Fordham University Law Professor, Sonia K. Katyal, has written a number or articles that I think are definitive references concerning concepts of postmodern appropriation. In “Privacy vs. Piracy” she describes how the Internet is being transformed by the increasing comodification of its content. One result, she argues, is the invasion of our privacy by the “piracy surveillance” of the music industry. See:

    Katyal, Sonia, “Privacy vs. Piracy” . Yale Journal of Law & Technology Vol. 7, p. 222, 2004

    You can read an abstract and download the article here (look in the upper left corner for the download link):

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=722441

    In “The New Survelliance,” written for the Case Western Law Review in 2004, Katyal argues that strategies of copyright enforcement have rapidly multiplied, each more invasive than the last. She claims this new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression – a virtual marketplace of ideas – alongside an insurmountable array of capacities for panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously.

    See:

    Katyal, Sonia, “The New Surveillance” . Case Western Law Review, Vol. 54, No. 297, 2004

    You can read an abstract and download the article here: http://ssrn.com/abstract=527003

    Perhaps Katyal’s most comprehensive article, and one that I think is essential reading concerning the theories and techniques of postmodern appropriation, is “Semiotic Disobiedience” published in the Washington University Law Review in 2006. She formulates legal theories that could define and support the ways today’s artists use their expressive freedom to alter existing intellectual property by interrupting, appropriating, and then replacing the passage of information from creator to consumer. She asserts that this ability to deconstruct information is essential for defining a fair balance between individual freedom of expression and the massive power of corporations to define cultural memes. The article is astounding because it combines a detailed knowledge of law with an incredibly erudite understanding of postmodern cultural theory.

    See:

    Katyal, Sonia, “Semiotic Disobedience” . Washington University Law Review, Vol. 84, No. 2, 2006

    You can read an abstract and download the article here:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015500

    Nice to have you back, Carl.

    William Osborne
    http://www.osborne-conant.org

    Reply
  5. Herb Levy

    Thanks for posting this, Carl.

    I’m a little bemused by some of the responses you’ve got here. I hope that Richard Lainhart’s reaction is only to the examples that Lessig used in his talk and not also to works by the composers that Carl lists (or to his own work).

    Yes, as Richard writes, building electronic sounds from scratch, as he does, is one of the most important and oldest traditions of classical studio electronic music. But let’s not forget the equally old and respectable tradition of musique concrete which forms some of the roots of Carl’s music, that of the composers he lists.

    None of these artists, is merely “tak[ing] two tracks and mash[ing] them together, or build[ing] an entire song from an unaltered 8-bar sample from a 70s soul record”. Each of these artists (& the list could certainly be expanded to include many others) is making complex and interesting works based on audio material from other sources, with a lot of development, processing & manipulation of the materials so that the resulting music is not simply an attempt to make a clever but simplistic comment on some social issue or just another hit single out of the detritus of other pop songs.

    Perhaps Lainhart just doesn’t know the work of these particular composers, but it seems to me that by failing to acknowledge this distinction, he is either misreading or ignoring at least some of the point of Carl’s response to Lessig’s talk.

    Reply
  6. rlainhart

    Herb: certainly I’m familiar with Carl’s work, along with the other composers he mentions (although I don’t feel that Oswald’s work has the same validity as Carl’s and the others). And I’m equally familiar with the music of the concretists and of Cage, perhaps the ultimate appropriator. I like everything of Carl’s I’ve ever heard, and most of what I’ve heard from the others as well, and I would never assign them to the same category of creativity as the rather simple-minded humor in Lessig’s examples. For one thing, you can listen to Carl’s pieces more than once and get something new out of them, whereas Lessig’s examples are only worth seeing once (and in the case of the first one, not even that.)

    Among the things I’m objecting to in the whole recent glorification of appropriation is (a) that it’s new, and (b) that any appropriation is as creative as any original creative act. Collage and direct appropriation have been around for at least 100 years, in the music of Ives for example, and direct unaltered appropriation for nearly that long, as in the work of Duchamp. I think that sort of appropriation was valid, and was a logical and necessary development in the natural progression of the arts. (Cage’s work was certainly necessary, to show us that all sound can be music.) But it isn’t new any more, and hasn’t been for a long time.

    My second point, that there are degrees of creativity, seems be falling on deaf ears. I respect Carl’s work, because he tries to make something genuinely new from his materials, but I don’t think all appropriators do, and I respect their work less, if at all. And so much of what I hear from the current crop of appropriators just doesn’t seem worthy of respect.

    Reply
  7. rlainhart

    And one more thing: I think that the current culture of appropriation devalues that which is appropriated, to the extent that music, that thing we all love, the greatest of all the arts, is becoming valueless. Certainly we’re starting to see the increasing acceptance of the idea that all music should be free. Does anyone here really believe that?

    Reply
  8. William Osborne

    Rlainhart comments: “I think that the current culture of appropriation devalues that which is appropriated, to the extent that music, that thing we all love, the greatest of all the arts, is becoming valueless.” He asks if we really believe is valueless.

    In terms of the market, about 99% of all contemporary classical music is indeed valueless, appropriated or not.

    We might also consider that most classical literature was also written under a feudalistic patronage system, and not for profit. Is it reasonable to view so-called art music as a commodity? Has it ever been? Occasionally it works that way, but very rarely.

    There seems to be a concept that if we wire all of our computers together, that common network belongs to all of us. There’s a certain logic to the view. There will also be a continuous rhizomic morphing of its content through appropriation and transformation. The Brave New World is here. We need to develop new concepts of ownership and support for the arts. No easy task.

    If imitation was once the greatest compliment, perhaps it is now appropriation/morphing. Creativity is a meme, a continuous cultural mutation that runs through the Net like genetic evolution.

    William Osborne

    Reply
  9. Dennis Bathory-Kitsz

    Taking Lessig based on one talk doesn’t get at his extended books, articles and talks about intellectual property, which derives from the commons and returns to the commons.

    I agree with Lessig. Ownership of the manifestation of an idea is a fiction given legal status to improve the circulation of improved ideas into the economy. It confers protection on those who take risk in distributing those manifestations.

    In other words, the rudimentary concept is that you own what you make, possess, trade for, purchase. If it’s a pretty decorated urn, that’s it. If it’s a manuscript of music, that’s it.

    Despite a tradition that now feels like it, there’s no absolute ownership of the results of mental effort (except, perhaps, for those encased in the brain that forgets and dies). In fact, most of that effort draws from the ideas of others and mashes them up, whether it’s harmonies and melodic progressions or sound samples. It’s critical to recall that this ownership is all legal sleight-of-hand, however deep it may be ingrained in the present-day idea of creative productivity.

    Grasping this reality is what sets in motion the madness that copying manifestations of the mind is theft. It isn’t theft in any tangible sense, and depends entirely on social graces and legal protection for its definition.

    I won’t argue against protection of the manifestations of the mind; good law, such as that in the U.S. Constitution, balances the good graces of protection against the society from which those ideas were drawn and to which it returns.

    Copyright doesn’t protect ideas, only the product of those ideas. Ideas draw from the commons, from society, from others — an ‘approved’ theft, if you will. The law has expanded so much because replication of these manifestations, once difficult or costly, has become inexpensive and the tools to replicate in fact invite doing so. The owners rush to copyright their buildings so they do not appear in video; promotional logos on t-shirts suddenly become ‘samples’ requiring clearance … a double-dip for the companies.

    Society’s economic machine hasn’t come to terms with this yet. We are in the legal jackboot stage, where every perceived infringement is stomped down in the name of the law. But the law as expanded and injected into artistic relationships is being ignored (a recent informal survey pegs it as credible to only two percent of those under 30), which is a sign that it is dysfunctional.

    Lessig’s example is crude but clear; William’s above is more subtle in its humor. And what rlainhart misses is the brilliance of the reworking of ‘appropriated’ material by the likes of Oswald. I recommend “Grayfolded,” for example, whose composition is monumental, with a score of cues as carefully prepared as any symphony. It is not the samples that are the source of “Grayfolded” itself — they only suggest their original sources as one might suggest Handel’s Messiah with little snips (“Yes, We Have No Bananas”). The Grateful Dead borrowed in sound and style and even melody; and from their sources were borrowings. Oswald continues the creative re-imagining of those distant, lost sources.

    And, of course, there’s the top of this page, written by Carl Stone. I don’t hide my unabashed thrill every time I hear his “Shing Kee,” which I consider the singular (and most musically gratifying) achievement in music drawn from samples. And yet not a single acoustic source of this creation originated with Carl. How is his creation in any way wrong or immoral or unethical — even if its sources were “illegal“? Such thinking is nonsense. The creativity of art is about reframing extant ideas, ideas from the society which raised and nurtured us, and protecting their manifestation is a courtesy. One way or another, those manifestations return to the society that is their true source.

    The distinction between the appropriated sample, whatever its length, and the source influence is what stymies the law. One is bad, says the law, the other good. But without reassessing the role of the pool of ideas out of which all creative people draw and reframe their mental ‘products’, that law (and its technological children, such as DRM) will inevitably fail.

    Dennis

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  10. Chris Becker

    For my CD Saints & Devils I incorporated samples in several tracks taken from recordings made by Alan Lomax. I worked with the Lomax archives to create agreements between myself as the writer and publisher and the artists and owners of the Lomax recordings so that I could release the music without feeling like I was ripping anyone off. The folks at the archive set up an agreement more in line with how they work with students who might be putting together a website or CD for their degree work. In other words, they had a sliding scale that allowed me to use the samples I wanted without paying an arm and a leg.

    If anyone wants to license one of these tracks, a new agreement will have to be drawn up.

    I feel it was worth my time to reach out and take care of these legal issues while I was creating the project. It didn’t hinder my creativity at all. And yes, sometimes someone you want to sample will say “no.” Or, the artist will want an amount of money you don’t have (they call it “Moby money” at the archives). But in my experience, artists, publishers and labels will often work with you in order to get their own work out there in the new context.

    I think navigating these legal issues and attempting to reach out to anyone you want to “sample” or appropriate or whatever can be a part of your creative processes. We are here to push the envelope. Maybe we can bring the publishers, label heads and lawyers along with us on this journey. There’s a lot yet to be resolved. And it is a scary time to be a musician.

    Reply
  11. rlainhart

    And what rlainhart misses is the brilliance of the reworking of ‘appropriated’ material by the likes of Oswald.

    OK, so I went to eMusic today and bought “Plunderphonics 69_96″, the only full album I could find there (“Grayfolded”, curiously, seems to only be available as a mailorder CD), and gave it a listen. I heard some Beatles songs played backwards and mixed with some drum tracks from some other Beatles songs played forwards, some chopped-up Jobim, Bobby Darin, and Frank Sinatra, and after a while just had to stop listening.

    I’m sorry, but I simply don’t get Oswald. I heard nothing at all there other than the most simple-minded and literal use of technology – basically, the same things I heard every other time I listened to his music. This is the kind of creativity I was speaking of – the kind that can’t exist without the pre-existing work of others. I visited Oswald’s site and saw that he apparently writes instrumental music and works with other performing musicians, and maybe that stuff is acceptable, but “Plunderphonics” is not. To put him in the same league as Carl Stone is an insult to Carl.

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  12. Dennis Bathory-Kitsz

    John Oswald was a guest on Kalvos & Damian (as was Carl Stone).

    It’s a two-part show (May 31 and June 7, 1997). If you have a Real player capable of playing older files, I you might enjoy shows #106 and 107.

    Dennis

    Reply
  13. carlstone

    Yow! I hit the road for Thailand and log in a few days in the middle of my trip to find a terrific discussion underway. Some excellent points being made, ones that I agree with and not. Look out for some reactions, which I’ll put up in my next regular column (along with maybe a cool video or two, shot here in the Thai countryside). Meanwhile please don’t hesitate to keep going.

    Reply
  14. rlainhart

    Dennis: thank you for directing me to your shows. Unfortunately, I can’t listen to them – VLCplayer won’t play them, and I have a strict no-RealNetworks-software-on-my-computer policy. So my opinion of Oswald must stand for now.

    Chris: licensing your tracks was ethically correct, and I commend you for it.

    Let me share an anecdote with you all. Recently, I posted a new piece of electronic music on my site, which you can listen to here if you’re so inclined:

    O-Town Media

    Scroll down to locate “The Orchestra Of The Damned”, and click on the link to play the MP3. By the way, all the music on my site is unprotected by anything other than a simple copyright notice, and none is for sale. I posted a notice about the piece on a synth blog I visit, and Gene Maruszewski, one of the other denizens there, asked for my permission to remix it with some of his work and that of another composer, Todd Barton, of whom Gene also asked permission. The results are here:

    Matris Terra Ultionis

    I liked it. Regardless of whether or not you do too, ethically, Gene did the right thing.

    Reply
  15. William Osborne

    I’m sure the person who re-mixed your work did the right thing when he asked for permission, but I think the topic raised by Carl is far more complex than largely unknown composers obtaining permission to re-mix the work of largely unknown composers. (And by “largely unknown composers” I mean about 99% of us.) I’ve never heard of a case of disputed appropriation happening in our tiny, marginalized community. In fact, most contemporary classical composers would have to pay someone to even carry their scores to the garbage. Sorry to be so explicit.

    The real question raised is this: How do we find a proper balance between the protection of intellectual property and the first amendment’s guarantees of free speech?

    What would have happened, for example, if the Yes Men had asked Dow Chemical for permission to use their corporate identity before they created their highly effective and very important spoof about the Bopal disaster? What if people had to ask Nike before using their logo to protest sweat shops (which can include putting the logo on things like t-shirts)? What about people using copyrighted images of Barbie Dolls to protest the affects the doll has on creating anorexia in girls and women? What if people had to ask big record companies before remixing certain kinds of pop music to protest its mass-induced forms of mental retardation? (To avoid offending anyone I won’t mention Ms. Spears.)

    If we are forbidden to deconstruct corporate logos and mass-media objects (both visual and auditory,) is it a forced form of silence that curtails freedom of expression? Is the resulting acquiescence a form of compelled speech? I think these are the more important issues at hand. We live in a world where corporations and governments have almost limitless powers for creating images and memes of enormous symbolic significance that deeply influence our society and lives. What rights do we have to respond, even when it means appropriating their intellectual property in the forms of those all-powerful symbols in order to deconstruct them?

    William Osborne
    http://www.osborne-conant.org

    Reply
  16. Dennis Bathory-Kitsz

    Sorry, Mr. RL, the Real Audio software was pretty much the only streaming audio game back in 1997 when those shows were put online.

    There are old converters that will covert that generation of RA to .wav, and from our site you can download old RA players beginning with verson 1.0 if you have a retired machine sitting in a closet (Win98 or Mac G3 or earlier).

    Dennis

    Reply
  17. rlainhart

    William: I’ll shed no tears over the “inappropriate” use of Dow’s or Nike’s intellectual property – I think there’s a strong argument in favor of the activities you describe in the socio-political sphere. But that’s not what I’m referring to in my arguments. I’m just talking about art.

    No doubt I’ll get a lot of grief for this too, but I think that the best art, truly timeless art, stands outside of its time, without a reference to topical events like you describe. Creative statements like the Bhopal or Barbie parodies may well be effective and necessary, but I don’t think they’ll last. No parodies do, really.

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  18. William Osborne

    I agree, Richard, that art that is solely topical has a limited shelf life because its relevance is bound to its own time. There are, however, some notable exceptions like Dante’s Divine Comedy. It is riddled with references to its own time that we can only understand through reading annotated versions of the text, and yet Dante also lifts those seemingly banal events into immortality. Themes like greed (Dow Chemical) and human degradation (Barbie) will always be with us. It is up to the artist to portray them in ways that are transcendent.

    It is important that we maintain our right to work with the cultural symbols of our time, even if it means speaking truth to power.

    William Osborne

    Reply

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