Category Archives: New Media / Journalism

Copyright law, new distribution technologies, the creative process, and mashup culture meet in a dark alley. What will they look like when they emerge?

Andy Baio, spoke this month at a CreativeMornings meeting in Portland, Ore. and called the current state of copyright enforcement “The New Prohibition.” Baio, an avid technologist, digital entrepreneur, “Wired” columnist, and artist believes that the threat of copyright damages stifles creativity.

Portland/CreativeMornings - Andy Baio from CreativeMornings/Portland on Vimeo.

Along with partner Andy McMillan, Baio, who was involved with the startup of Kiskstarter, the online fundraising platform for independent artists, runs “XOXO,” one of Portland’s artisitic symposiums. Fifteen hundred tickets sell out within hours. He is passionate about building creative community.

Fresh from a copyright lawsuit himself, Baio understands, the artistic process, and has a fair grasp of fair use. He does not support the idea of intellectual property rights as they currently exist and believes they have a “chilling effect” on creativity.

In his presentation, Baio tells the story of his copyright suit. He thought he had a solid case for fair use, but ended up settling for $32,000 to avoid the potential $150,000  in potential statutory damages. To avoid maximum fines, most copyright suits, like Baio’s, are settled out of court. “It takes a lot of affiliate income to cover that,” notes Baio in his video.

“Cut, copy, paste. The ability to reuse and remix is so deeply baked into our tools, it’s rewritten our culture,” reads the introduction to the online video on LiveLeaks. “We learn to make great art by copying, and we participate in our culture by reusing and modifying what we see,” continues Baio.

The Law

The United States copyright law was originally passed in 1790 to “promote creativity by administering and sustaining an effective national copyright system.” Writers, painters, photographers, musicians, and performance artists depend upon the law to deter others from copying, claiming, modifying, distributing, or benefiting financially from their creativity.

The law allows “statutory damages” of up to $150,000 for works that are officially registered with the U. S. Copyright office.

Matt Stitzer, general counsel for IAC, the company that owns such well-known brands as Match.com and Vimeo explains how damages are awarded: “Statutory damages only apply with respect to registered copyrights, i.e., in the vast minority of cases,” Stitzer wrote this week via electronic correspondence. “For everyone else, copyright attaches at the point where the ‘original work of authorship’ is reduced to a tangible medium. For the latter class (unregistered works), it is difficult to prove damages,” Stitzer continues.

All this legalese used to be the terrain of artists, lawyers, and other artists. Now it belongs to every kid with an iPhone who uploads a video mashup (WARNING: graphic lyrics) to the latest Macklemore hit and every high school graduating class whose year-end video is accompanied by a Radioactive’s “Imaginary Dragons“or Nickelback’s “Photograph.”

Describing what he considers to be a “new era of frenetic self-promotion,” Stitzer writes, “It is difficult to envision the social exhibitionists among us defending the notion of self protection. Our concepts of copyright protection are bound to erode,” he believes.

The Derivative Nature of Art

Baio is less concerned with self-promotion than with the creative process itself. He joins a host of luminaries and students of literature who purport that all art is derivative. Austin Kleon wrote a book called, “Steal Like an Artist,” encouraging Creatives to copy and study works that resonate with them until they find their unique voices.

“All art is theft,” said Pablo Picasso. T. S. Eliot articulated it like this:

“Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that from which it was torn.”

In his presentation, Baio provided as example the “Harlem Shake” mashup phenomenon found on YouTube. According to Baio, the first mashup was posted on Feb. 4. As of this writing (June 30), over 264,000 derivative clips showing up on in a YouTube search. Choosing one clip, Baio created a graphic, showing its derivative pedigree.

How consistent is copyright law with the creative process and how culture organically unfolds? Not very, believes Baio:

“But the law hasn’t caught up with our changing values, effectively criminalizing the creativity of millions. Cover songs on YouTube, fanfic, mashups, and supercuts all violate copyright, and lawyers are starting to find new tools to discover and enforce infringement.”