Copyright in the Digital Age

Defining “Transformative” in the Digital Age

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I have long debated and struggled with the boundaries established by the word Copyright. It is an issue that I deal with on a weekly basis in my own classroom and school with students and adults alike. Some days I choose to obey or enforce the law, and I admit that some days I turn a blind eye, or make justifications for breaking this particular law. For this reason I can firmly state that I wholeheartedly agree with Larry Lessig’s affirmation that copyright law was created for, and had its place in a different era but is now completely outdated. In its current form, copyright law is entirely incapable of keeping up with and adjusting to a digital landscape that is evolving at exponential rates.

“Good artists copy.

Great artists steal.”

-Pablo Picasso

The meaning of this quote by Pablo Picasso has long been debated, but it speaks directly to the topic at hand. All creative endeavors are influenced by what has come before them as well as the culture in which they are created. Contrary to the literal meaning of the quote I think that Picasso would have considered the artists that copied to be the copyright infringers as opposed to the artists that steal. To ‘copy’ is to simply take someone else’s work, and having made no changes, claim it as your own. To ‘steal’ is to take someone else’s work and make it your own by applying your own personal flair.

In the past this idea of borrowing from others or drawing influence from your world was much slower process and usually resulted in more extreme departures from the original idea. In todays world, digital technology has enabled this process to happen in a matter of minutes or hours with results that tend to be more subtle variations of the original. If you look at the one subtle variation to the next you might be inclined to call foul. However, if you were to look at the most current variation and compare it to the original it is likely that you would consider a transformative process had occurred. It is almost as if the creative process that Picasso was describing, that traditionally progressed within the secret confines of an individual’s mind, has simply been brought out into the open for all to see and for all to participate.

So in my opinion it all comes down to what one considers “transformative”. Let’s examine Shepard Fairey as an example. Fairey’s arguably most popular and possibly most controversial work is the Obama Hope poster created during the 2008 presidential election. However this is not the only image that Fairey has appropriated into his repertoire. Here are many other examples compiled by Mark Vallen on his website, Art For Change.

On a first pass the plagiarism appears blatant and extreme. However, it would be hard to argue that all of Fairey’s works aren’t part of a cohesive and highly unique body of work. Many argue that Fairey does to little if nothing to transform his appropriations.  This was the primary argument against him in the Obama Hope poster lawsuit. Examining the original photo and the resulting poster anyone can see that they are almost identical.

However, I will leave you with this. The photo got no more attention than accompanying an article where as the poster unified millions of people behind a man that was then elected President of the most powerful nation on the planet. If that is not transforming a piece of art I don’t know what is.

Unfortunately the Fairey controversy is the result of an old system and protections based on outdated laws. Great strides have been made in just the last 5 years in the realm of Creative Commons. CC offerings used to be sparse and of poor quality, now they are plentiful and quite comparable to pay-for-use options. Had Fairey utilized a photo with Creative Commons licensing he could have probably avoided a serious headache.

Really there is no such thing as originality. Nothing can ever be understood outside of the context that precedes it. Every letter of every word and those words themselves have all been used billions of times. It is precisely because we pass them among us, that we share them, that they have any meaning at all.

I am distressed by this spirit of mine mine mine that seems to be growing out of the paranoia about the openness of our modern networks. For decades we have been able to go into a library and take down a book and photocopy it right there in the library, and yet publishing survived. We have long been able to record songs, movies and TV shows off the air, and in fact the record companies have paid radio stations to make sure it was their songs that were being broadcast freely into the air. Each of these technologies like xerography or video tape recorders were met with the same chicken-little forecasts of the death of creative effort, and yet we continue to create.

Artists will not stop making art, it is just, thankfully, getting harder and harder for the oligarchs to maintain their control over the commerce of art. Artists can now form authentic communities with their audiences and we no longer need a Top Forty, anointed by the powers that be, with the bottom 40 million left utterly out in the cold. Now we can each make our own top forty, included in which will be millions of much more diverse artists who will have the opportunity to make their livings as artists, albeit more modest no doubt than those of the mega celebrities churned out by the “star-maker machinery behind the popular song”, as Joni Mitchell so lucidly described them.

I’m not so sure what this model of an authentic community between artist and audience, freed from the exploitation of middle men is going to finally look like. We already see filmmakers making their livings off ad revenue from you tube, and small creators using membership models. I suspect that the ISP fee sharing model with robot-tracked click-to-pay systems will solve it all, and lead to just the sort of boon and boom I am envisioning



Schmience explained

I was really torn when first presented with this leadership assignment because of how down-hearted I have felt at my confusion over this CBR project and how I eagerly took on a challenge to do research with the aim of perfecting my Schmience science literacy program, only to have the EMDT faculty require that I truncate it. I have to confess that I am am not proud of my CBR site and am too embarrassed by its limited and redundant nature to wish to publish or present it. But I am trying to maintain my interest and commitment to the larger idea this challenge that I took on, and want to adapt as much of the material that I have created here to this more authentic purpose as possible.

But it turns out that I have actually been heartened by this process of thinking about my sources of inspiration. One of my very first heroes was Jacques Yves Cousteau, whose lifelong effort to educate us all about the ocean and fate of our precious planet has motivated me since I was a little boy.

Jacques Cousteau and his wife Simone with their sons Phillipe and Jean Michel

Another hero from my youth and from this realm of science education was Carl Sagan. His program Cosmos was culturally transformational, and was instrumental in convincing me that our welfare depends on science literacy. He said: “We’ve arranged a civilization in which most crucial elements profoundly depend on science and technology.” His book, The Demon Haunted World convinced me to become an activist and has had me standing up against superstition and ignorance ever since.

Carl Sagan explaining the size of our solar system

I have a number of heroes in the movement for open access to information. Stewart Brand, whom I have mentioned a number of times, and whose Long Now Foundation is doing great work educating the public about the need for long term thinking with their Long Term Seminars with Kevin Kelly, The Rosetta Project with Jim Mason and the  10,000 year clock with Alexander Rose.
Stewart was one of the people responsible for the New Games tournament

New Games, 1973, Marin Headlands

and along with a whole cadre of my fellow boomers has been approaching global problems in the context of a systems paradigm and using social engineering to construct collaborations and alliances in an effort to slowly transform the world.
I admire folks like Scott Beale and his Laughing Squid, Brewster Kahle and the Internet Archive, and Craig Newmark of Craigslist who are all geniuses working hard not in fulfillment of Adam Smith’s outdated observations about the primacy of self interest, but in an enlightened understanding of the interconnectedness of this planet and her beings and the great joy to be found in living these collectively-inspired lives.

Copyrights and Fair Use

obama fair use

Jessica wrote:

Week 1 Reading Blog post: Copyright Issues

As a creative person, and someone who is almost always creating, this is not my first time reading, researching and thinking about copyright laws and issues.

I remember my first real foray into researching copyright was in high school, senior year.

I had gotten a very nice film SLR camera (Canon!) for christmas and was bursting with creative ideas. I had an idea for a specific direction i wanted to go with my photography, and i wanted to create a website to share these creations with.

My combined love of molecular biology and photography led to the creation of “Double Helix Studios”.

At the time, I had big plans for my photography (as always, life got in the way and I had to put it aside for a long time. I am just now getting back into it) and wanted to maintain my own website, promote in art shows and websites, and of course protect my images.

But before i put all this on the web, I wanted to make sure i wasn’t stepping on someone else’s toes first.

So I began research into what copyright was, how it applied, how it could be defended, and if anyone else was using the name Double Helix Studios.

I knew that i didn’t really know much about copyright, and i knew already that there were many misconceptions about how it worked. But i didn’t quite realize what i was in for.

It was like going down the rabbit hole.

Fair use, public domain, use of the copyright symbol, benefits of registering, likeness, intent, common usage… all things I found myself discovering, questioning, and researching further.

It didn’t take long to become overwhelmed.

To this day, I’m STILL not 100% on how it all works, or if i’m inadvertently infringing on someone else’s copyright (although I haven’t found any thing yet).

I did find out some useful pieces of information that have helped me since then, many of which are mentioned in the videos we watched.

For example, it was reassuring to know that technically, all of my photos are copyrighted the second i create them. Registering isn’t necessary, but it helps for legal purposes. It was also both interesting and confusing figuring out whether or not i might infringe on someone else’s trademark if they use the name Double helix Studios for a product or service that was totally unrelated to photography.

Even after watching the videos for our “Reading”, i’m still not sure.

(Trademarks are a whole ‘bother mess to look into)

I really liked that there was a video for what *can’t* be copyrighted. This was the first thing I looked into myself when i started my own research. Although it seems like common sense, i’ve come across many people who don’t understand these (seemingly) basic ideas.

Especially in the internet age of communication, I’ve seen many, many conversations and debates rage online about copyright law (often in conjunction with conversations about piracy and intellectual theft), where many of the discussions revolved around incorrect information.

In many of those conversations, people who seemed intelligent and well spoken, were making huge leaps of logic based on completely erroneous information, often misunderstanding what was and wasn’t able to be copyrighted.

In fact, I’ve seen most if not all of the “10 big myths about copyright”  used in these conversations/discussions/debates.

This is especially true for “public domain”.

There are so many misconceptions about what is and what isn’t public domain, and how public domain works.

As more and more people are using the internet, apps, and media to create their own new media (youtube videos, songs, etc), I think a good understanding of copyright, and attribution is even more important.

As a teacher, i see many students who simply don’t understand how important attribution and permission is, and how serious it  can be if they don’t properly attribute something they’ve used in a creation.  The “if I don’t charge for it”, “public domain” and “Fair use” and “Re-mix” arguments are things I hear from students frequently.

Often my students are (or are very good at pretending to be) clueless when I tell them how serious their use of someone else’s material in their work is, and how serious the consequences can be.

On the other hand, the complexity of the law makes it very daunting, and discouraging to burgeoning artists.

It’s been said there are only 10 stories to be told. Everything is a retelling and remake of something else.

In some way, this is true. Is anything *truly* original anymore?  it can be said that everything is inspired by something else.

So is anything created technically infringing someone else’s copyright?

Of course this isn’t quite true, but it can be easy to get overwhelmed and confused.

And this is an important note that the  “Top 10 myths” video addresses, although briefly.

In the EMDT program, we touched on the idea of copyright, and using royalty free images, in creating our educational media. But the information has been here and there, sporadically addressed in a few courses, but never more than a sentence or two, often in the role of “don’t use copyright images” or “use royalty free images, but with attribution”.

And honestly, even in this program, I’ve heard different and conflicting pieces of information. Even on the Masters level, information is uncertain, and muddled.

For a program that focuses on the creation of new media, I think it would especially beneficial (dare i say necessary) to include an official course, or at least lesson plan (in the first month or two) on this topic.

I guess you could say this week’s reading IS our lesson in copyright. The videos/reading for this week has been the most comprehensive, and consistent lesson experience i’ve had so far in this program.

But at this point, it seems too late. We’ve spent 11 months creating media, with a vague understanding of what is acceptable in terms of using others images/sounds/etc.  I think it would be more useful,on an educational and even legal level, to be exposed to these readings/videos/lesson in our first month of the course.

I have to admit, it’s kind of a wake up call to realize that, as educators, we aren’t 100% sure of the basics of copyright and fair use.

On the subject of fair use, while I thought the “Fair(y) Use” video was cute, and interesting (although I found the jilted nature of the speech distracting in many places), how does the video itself factor into copyright and fair use?

The Fair(y) Use video alludes to the idea that the clips used fall under fair use because they are small amounts used for educational purposes.

But in the video where Prof. Bustillos discusses fair use for education, he mentions about how a small bit can of material can be used for teaching. However, for teaching, if the lesson can be made without the copyrighted material, the copyrighted material should not be used.

Well, although the Disney video is cute, those pieces weren’t necessary to make the lesson’s point. A video about copyright laws could have been created without using copyrighted works. So does this make the video still ok?

Is that question “can this lesson be taught without copyrighted material” a legal one, or just a “common sense” idea?

A video teaching about copyright/fair use, that is unclear on whether it’s own use of copyrighted works is allowed. How ironic.

And now I find myself in same situation I was, those years ago in high school: the more i research and read and educate myself on copyright, the more questions and uncertainty I find I have!

It doesn’t help that many copyright laws are becoming obsolete, or outdated in their use.  Our methods of creation, types of media, and access to media have grown and changed rapidly in the past 10 years. it’s difficult enough for the average person to keep up with this growth, much less the law.

But, it’s an important thing that i think the public, and law makers need to look into and consider. Not only are our copyright laws in desperate need of an overhaul and restructuring to reflect today’s world, but they are in even more desperate need of being streamlined and simplified.

Until that happens, I think it’s especially important, as students, and the public in general have quicker and easier ways to create, distribute, share and access creations,  for colleges, and even high schools to start integrating copy right/attribution classes into required curriculum.

Nesdon Replied:

I really resonate with your uncertainty, but this is a legal inevitability. Anybody may not be able to of sue anyone for anything

But any fair use claim would always be open to interpretation and so to a lawsuit. This means the only really safe course is to never use anything, certainly a position that many people take, but to my mind, a silly one.

Fair use is real and does exist and is widely and successfully defended for purposes of education and comment, and I would sooner err on the side of great education than on the side of personal risk aversion.

It hasn’t happened to me and I may be cavalier about it, but I figure if I do someday overstep the bounds and get a letter from a lawyer, my rapid and faithful response to the copyright holders demands would likely resolve the issue.

And while Shepard Fairey and AP have settled amicably, Fairey also plead guilty to Criminal Contempt last month for his active and egregious cover-up of his infringement


Carl wrote:

As I begin to think about what type of leadership style I want to embody and have been asked to take a look at other whom I respect or would want to follow I was struck by how difficult this task was. Unfortunately, I have not noticed too many positive role models in the public eye in recent years. Our political leaders have the communication skills of angsty teenagers and exist in a world of blatant hypocrisy. Our corporate and business leaders have exhibited very little more that abject greed. Our culture glorifies the likes of the Jersey Shore crew and rewards this type of behavior with fame and fortune. Our sports champions have all been doping and juicing. Our religious leaders have been hiding atrocities within their own ranks by simply shuffling the perpetrators to new flocks of unwitting victims. Needless to say there have been very few to look up to and emulate. I know they are out there. They are just harder to find because people who make positive contributions don’t get the same airtime and publicity as those that don’t.

So here is a list of people and organizations that have qualities that I respect and from whom I draw inspiration.

My Wife – The best communicator I have ever known. She is able to engage in even the most difficult conversations with a cool head, and utilizes language that dissolves conflict allowing all involved to get past their own agendas and actually listen to one another.

My Kids – At 2½  and 6 months every day is a new adventure and every situation contains new learning. All would do well to maintain the same curiosity about their world that they all had at that age.

My Mom – She has devoted her entire life to making positive impacts for the greater good of our world.

My President and My School Principal – Both are men that make hard decisions based on extensive research and hard data. Though not always the most popular, if you actually take the time to do the research yourself, it is hard to deny their reasoning is not firmly grounded in the complex realms of reality.

TED – One of the only media organizations that actually glorifies the positive aspects of human potential. The ideas are profound and the conversations they generate serve to move our species forward in positive directions. I would hope to one day find myself contributing to this amazing collection of individuals.

WIRED Magazine – This publication appeals to my futurist side. They ride just this side of the line from science fiction into the cutting edge of science fact. Their articles inspire me to think big and think outside of the box; to push the limits of the status quo because nothing cool comes out of doing the same thing that has been done before.

The New Yorker – The best-written publication I’ve ever read. No matter the topic I find myself enthralled. If I could write one tenth as well as the authors in this magazine I would feel satisfied.

Nesdon Replied:

Wow, I have to say your three media references are just spot on in my book. In fact the New Yorker is so good it seems almost supernatural to me. How they can produce this much work of this quality every week for going on a century now is mindboggling.

TED too is a beautiful thing, sadly a bit elitist, you have to apply and then be invited, and then it costs a fortune to join, but at least it helps keep the quality level up. They just had a big event here in Long Beach, and I had to sit on the outside looking in, but at least they put their lectures up online for free.

One of the things I miss most about living in the Bay Area is the Long Now lecture series that are hosted by Stewart Brand and Kevin Kelly, one of the founders of Wired, who are old chums from the Whole Earth Catalog. Their seminars a free and open, and the quality of their speakers are really fantastic, so I’m not so sure that TED’s elitism is really that necessary.

Owner vs creators

Tupac and Suge

One of the serious problems that has developed in copyright law for me is the distinction between owners and creators. The constitution enshrines copyright to promote commerce and creativity, but too often the owner of the copyright is not an artist, but some marketing entity like a record company or studio, whose interests are less creative and more pure profit motive.

For this reason many artists are now able to use to openness of the web to successfully use a strategy where they give their art away, and develop a brand identity that they can cash in on in numerous ways, rather than selling their work to one of these corporations. It is sad that an artist who may benefit from not enforcing a copyright and allowing their work to be passed around more freely, can have this blocked by the corporation with whom they may have made a deal that was not in their best interest.

These middlemen, (read pimps) were required with motion picture and music distribution required high-cost industrial support, but today this is not the case, and these works can be easily created and distributed cheaply by the artists themselves. So so much of the Sturm und Drang that has been raised in the past couple of decades over piracy, is really these obsolete and greedy behemoths trying to stave off their inevitable demise. Metallica is a great case in point as their vocal and fierce attack on Napster actually alienated their audience and destroyed their business model.

Tim Berners Lee, World Wide Web inventor

Tim Berners Lee, when he invented world wide web, while working at CERN, demanded that his bosses give it away. He realized that any effort at licensing it would mean that it would not become the universal resource that was necessary for a network like we now have to grow and exist. The unbelievable amount of creativity and commerce that has resulted from this decision not to protect his intellectual property has resulted  a transformative paradigm shift in the way we think about intellectual property


iTunes Terms of Service

One of the things that always strikes me about legal issues is that they are often not real issues, but statements and provisions made mostly to cover someones a**, when and if the sh** hits the fan. Terms of use agreements are the epitome of this, as I doubt if, in most cases, either party to the contract actually knows all that they are agreeing to. Teams of lawyers write these things so they can base arguments on them in the event of litigation, but if Apple suddenly used the rights they reserve to unilaterally modify the contract at any time and revoke everyone’s iTunes permission and making any use of the software illegal, they would be in big trouble.

Many rules are published and in place mostly just to demonstrate due diligence and nobody really cares if one obeys them, they just don’t want to be the one getting blamed. Students routinely violate copyright in producing assignments, and despite the fact that there are specific exemptions in copyright law for educational use, many teachers vociferously forbid any use of copyrighted material in assignments mostly as CYA doctrine. In fact there is even a specific exemption added to the DMCA, (which had added a violation not for only for use but also just for cracking DVD copying protection) to allow teachers to crack DVDs to use excerpts as exemplars in teaching. There is some ongoing controversy, (at least in my mind as both a teacher and student at a for-profit college) as to whether this should apply to for-profit schools, but to my mind, the educational fair use exemption should always apply to students using the work for educational purposes in keeping with the limits set forth by case law.

LAFS Blockbuster Shoot

A film produced by our students, called Blockbusters used music and images in a copyright violation frenzy that mashed up “Back to the Future”, “Superman”, “Star Wars” and “Batman” in a faux Blockbuster commercial. Trever used this film as part of his entry for Spielberg’s “On The Lot” TV show, which means that the owner of some of the copyrights that were violated actually watched and admired the film. The opposite pole of this is the song “Happy Birthday to You” which most people believe to be public domain, but which has been subject in many enforcement actions and lawsuits.