Copyright Legal, Laws, and Regs

Freedom to innovate

Recovered from the Wayback Machine.

UpdateOf course, I realize that I’m probably a-l-l-l-l-l-l-l alone in the viewpoint I’m expressing in this post. Which is a true measure of freedom to speak — when you can speak amidst your peers and not get stoned.

(Damn, did I just get hit by a falling link?)

And no, as a matter of clarification, I wasn’t offered a job with Disney. But I do get unhappy when I hear people say things such as “artists gouging their rights from the public”. Makes me not want to be an artist, if by doing so I’m ‘gouging’ someone out of their rights to take my stuff and do what they want with it.

If Mark Twain were alive today, he’d agree with me. You know something, else? If Mark Twain were alive today, he’d be a great blogger.

And he’d agree with me.


This will be my last posting on copyright, Creative Commons, Eldred vs. Ashcroft, and freedom of speech as compared to freedom of innovation. Too often in these discussions we become little mini-lawyers, spouting out rules and regs of law, citing article and verse, as if he or she who can reference more, wins. What we should be discussing is what all of this means to us, as individuals, and leave the law to the lawyers and the discussion of law to the courts.

Long ago when I talked about the Creative Commons licenses, Dorothea Salo wrote a weblog posting about how she wouldn’t be using CC licenses or copyright notices at her weblog. Her reasoning is based on a story of plagarism, revenge, and brilliance; all set in the early 1600’s and resulting, ultimately in that classic work El ingenioso hidalgo Don Quixote de la Mancha. According to Dorothea:


To me, these are appropriate revenges on an appropriate field of battle, revenges that enrich us all. What good to world culture is a court fight over creativity? What is the good of automatically branding creativity with the mark of the lawyers, as if there were no other way to think or act toward it?

The only unchanging language is a dead one. The only creative work never to be reworked, rethought, stolen from, excerpted, (yes, even) copied is—a dead one. The legal arena of copyright, even the benign-by-comparison Creative Commons form of it, is murdering creative works both existing and potential. Killing them dead


Dorothea’s choice is an unusual one today — she chose no legal path, at all. In other words, a person can take her work, do what they will with it, and she won’t sue them or otherwise invoke any law on the person. One could say that Dorothea has given her works to the Public Domain, but she doesn’t even necessarily acknowledge the Domain. Her work is. Use it, or not.

What Dorothea has done is shown us that copyright laws are only effective if the copyright owners choose to exercise their rights of ownership. If a thousand people copy a poem, a book, or a song, and the owners of same don’t sue, then ‘rights’ as granted by copyright law are meaningless. Copyright law is a passive law — it doesn’t seek to enforce your rights, you must invoke both the law and your rights.

A couple of months back, Shannon Campbell wrote a post about another weblogger, Scott Andrew LePera, copying one of her songs and then editing it, adding himself into the mix. Well, this was clearly an act of copyright infringement, but instead of getting a lawyer and suing Scott, Shannon was delighted. She wrote:


Having been a solo performer a greal deal of my career, I’ve never had the opportunity to hear one of my songs with bass and percussion. To be honest, if you’d asked me to pick one of the six or seven I have available for download to overdub, this would’ve been the last one, but only because I never envisioned it would work so well.

You did an incredible job of working with the dynamics of the song, and building it *just right*. The harmonies are perfect, especially on the chorus, where I’ve had a lot of trouble finding the pocket for them myself. I guess it’s that whole “objectively listening to your own material” thing.


Derivation really is in the eye of the artist, and some artists support derivatives and others don’t or don’t support certain forms of derivation. Regardless of what you do with the copyright laws, how you manage their lengths and their enforcement, a derivative work will always be a goodness if supported by the creator, and tainted if it is performed in defiance of the creator. No copyright law will ever change this, and this isn’t a question of ‘natural’ law versus any other kind of law — this is based on human behavior.

In my comments, Timothy Phillips wrote:


My view is that the rights that copyright holders enjoy are rights that have been gouged out of the public’s rights (emphasis added). The public has “sacrificed” (James Madison’s word) or “derogated” (Levi Lincoln, who I believe was Attorney General in the first Jefferson administration) some of its rights to the rightsholder. Hence whatever rights the copyright or patent holder has, the public had first. The public cut off a bit of its rights to give to the rightsholder for a time. Or perhaps more exactly, the public agrees with the rightsholder to refrain from exercising its rights for a time, in order to create an exclusive privilege by way of encouragement ot the author or inventor.


By the very nature of this statement, Timothy has put the artist and the public almost into an adversarial position — the artist has ‘gouged’ out his or her rights to her own work. I compare this with another quote that appeared in another of my comments from Gina Guiliano:


“Lord Thring asked me what I thought would be a fair and just copyright limit. I said a million years – that is, copyright in perpetuity. The answer seemed to outrage him; it quite plainly irritated him” (Mark Twain [1906], The Autobiography of Mark Twain).



The point that Mark Twain makes is that these so-called copyrights granted at the sufferance of the public to the artist should be the norm; it is then up to the individual artist to decide how their art is used, copied, re-sold, or innovated on. And if the artist is comfortable with the innovation, then the derivative work prospers; but if the artist is unhappy with the derivative work, then how can the derivative be anything more than a rape of the original artist’s creativity? A mocking of that which you seek to emulate and derive?

Much of this case surrounds Disney’s control of Mickey Mouse — Free the Mouse, goes the slogan. But to what purpose? If you use Mickey Mouse in a manner that generates consternation of the Disney corporation, and most likely would have caused consternation to the original artist, Disney, then what is the point? That you used the Mouse because you could use the Mouse? That you used the Mouse as a weapon against Disney? That you used the Mouse because you lacked the creativity on your own to create your own character?

What would be the point?

Also in my comments an anonymous poster brought up the famous playwright, Beckett, and how he wanted strict controls over how his plays were staged, a strictness that is still enforced by his estate. By denying certain modifications on his work, Beckett was considered to have somehow abrogated the innovators’ freedom of speech. But how? One would have to assume that the author of a play understands his or her work enough to know when a derivation is, to the author, harmful to the original intent of the play. Should the original author’s freedom of speech be subsumed as lessor to that of the innovator?

By what standard do we measure these things that he or she creates has less rights than she or he who copies and modifies?

In one particular instance, Beckett sued a production company that wanted to use all female characters for the play, “Waiting for Godot”. He said at the time:


Had I wished those characters to be female, I would have said so.


Is Beckett to be condemned because he created a finely crafted play, with many built in dependencies, of which one such is that the players are not all women? To him, to change the sex of the characters was to change the essence of his work — to abrogate his freedom of speech as expressed in his work.

I’ve heard people say that many times a work is necessary in order to prove a point, so one must use the work in order to exercise freedom of speech. For instance, one might recite a poem at a demonstration, or give the Gettysburg Address. But neither of these is a innovation as much as it is a recitation of the original work. And when it comes to writers at least, I know of few who would ever seek to stop a speech on a campus, or have a publication pulled because it recited some of their work in order to prove a point. Forget laws, and what is or is not allowed, I know of few writers who wouldn’t like to know that their work is inspiring enough to be used to prove a point. Unless…

Unless, the writing is pulled out of context, modified, and used to prove something that is abhorant to the writer. Then few would not fight to reclaim the true meaning of their words. To reclaim their freedom of speech.

Innovation does not mean “copy and manipulate until the end result no longer resembles the original”. It means “..the act of introducing something new”. Innovation should be based on inspiration, and should be an act of celebrating an original writing or piece of art or music because it so inspires a person that they take that which is given and work to create something new from the old; but something that is an inspiration, not an exact copy that one changes key items in order to get written up in the newspaper for the audacity of such change. Even I, a person who is not heavily involved in the arts, can tell the difference between true innovation, and cheap rip-offs.

I’m not going to debate this anymore, and I’m certainly not going to go head to head with the legal wannabes, quoting article and law. I know what I believe: that copyright is only meaningful when invoked; that many artists are flattered when their work is quoted or copied for inspiration, as long as the artists living isn’t threatened, and their own rights aren’t cast aside; that works of art are an expression of speech that must be given the same rights under the constitution as those who would seek to use this art for their own means.

I hold the copyright on these weblog postings, not because I think they are works of great writing, but because I don’t really care to have them copied elsewhere. The reason is that the postings are part of a package, which includes all the writings that surround each individual posting, the comments and the trackbacks, even the colors and the look of this weblog. All of it combines to say something that is unique to me. When everything but the writing on a particular post is stripped away, then I feel as if my words have been taken from me, and I’ve been shut out. I feel that my freedom of speech has been denied me, because my ‘speech’ is the weblog, itself, not just an individual piece of it.

But I encourage people to quote me, to pull sections of the writing into their own writings, to leave comments, to disagree, or agree, or even to tell me I’m full of it. I even give people the platform to tell me this, within my weblog. So how am I depriving the public domain of their freedom of speech because I want people to come here to read my posting in its entirety?

(Regardless, those times when entire postings have been copied, I’ve not complained — such is life on the Internet. I feel the same about my photos — as long as you don’t sell them, I’m not going to complain if you copy them. Probably will if you muck them up into something opposite of what they originally meant.)

Loren Webster writes, wonderfully, about stories and poems in his weblog, and wood s lot is famous for linking to incredible photos and articles and stories. Have they ever violated copyright law by doing so? Isn’t the question really, has anyone ever invoked copyright law on them in their actions? Would this stop them from writing?

I guess I don’t know. I don’t think so. Loren might not publish poems by one specific artist, if requested by that artist, but there are so many others to write about, either not covered by copyright, or open enough that they don’t invoke copyright. In fact, even if an artist’s poems were not covered by copyright, if the artist asked Loren not to write about their poems, I don’t think he would.

The irony of this is that Loren has covered To Kill a Mockingbird, a work banned in many schools because of the language used in the book. Where’s the freedom of speech in that?

(Loren, am I dragging you into something again? Should I pick on someone else for a while? I can pick on Jonathon, or AKMA, if you’d rather. blink blink.)

I do know that, to me, true freedom of speech has to do with speaking out against cruelty and against war; and speaking for tolerance and justice. I have the right to speak out against President Bush and Vice-President Cheney, as well as Attorney General Ashcroft, without the fear of going to prison. To me freedom of speech is fighting a war in Iraq I know in my soul will cost the lives of thousands.

You tell me how Mickey Mouse is going to make me more eloquent, or the words more imperative, and I guess I’ll become a believer. But in the meantime, I’ll just have to muddle along using my own thoughts, and my words, and my own speech, and with an occasional quote or two from my friends.

And you can quote me on that.

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