when media becomes culture: rethinking copyright issues

After listening to representatives from the RIAA and EFF speak past each other, i found myself frustrated at how to push the debate further. It looks like such a religious issue (two sides who simply can’t understand each other) but i have to think that there’s a way of progressing the debate. I turned to Mimi and asked her what she thought. She pointed out that the most important issue is always lost in these discussions: the use of media in remix (and other “infringement”) is primarily not about art or creative expression, but about communication. This hit me over the head like a hammer.

Mass media has done such a good job at embedding their copyright into culture that it has become culture itself. The watercooler effect is what happens when media becomes the bits of communication – it’s what lets us share our values and interests, determine common ground, etc. Conversations swirl around TV characters, brands and movie quotes. I remember two kids in college deciding to only express themselves through Monty Python quotes in conversation. They felt that every question or comment necessary was already present in the movie. Of course, much of the language that i use is straight from media. Take a look at my posts and you’ll find littered references to songs and movies, sometimes cited, sometimes not. Perhaps the language of cinema truly is universal?

With new media, we have begun to communicate using more than just words. You see LJers use different photos and animated gifs on different comments as their signature of sorts. Personalized ringtones are all about associating sounds with people, building in-jokes and cultural references into the communication channels. Hip-hop certainly has an artistic bent but there’s also a long-standing tradition of telling your story. Remember mixed tapes as a way to say something to someone? Or when girls made collages out of YM magazines? Lives are littered with media and as we become adept at using it to communicate our thoughts, it will appear more and more, in spite of copyright.

To magnify the issue, our communications have become increasingly persistent. While we still produce a great deal of ephemeral communications, digital and mobile technologies make much of our communication persistent. The remixed sounds of the local club suddenly have mass appeal. But at what cost? On one hand, folks want to get their expressions out to the masses, but when their expressions include copyrighted material, they are at risk.

But with media saturating our culture, how do we express ourselves devoid of references to copyrighted material? Why can’t a kid wear a hand-made iPod costume for Halloween? Why can’t i tell my story through the songs that i’ve listened to over the years? Media is the building block of storytelling and it has become so essential to what we do.

The RIAA (and other such organizations) have been so successful at getting their media distributed that they have become culture. In turn, this means that they are the building blocks in which communication occurs. At this, they balk. Do they have the right to? Do they have the right to limit culture built on top of culture? If i want to tell my story using the cultural elements that have become a part of my life, do i need to recognize the RIAA and such as the controllers of culture? This is a dangerous limitation.

Copyright was meant to help artists get their work out. Mickey Mouse is out there; they were super successful and the copyright owners made billions. But now Mickey Mouse is culture – it symbolizes far more than Disney. Do the copyright holders have the right to control culture in this way? They’ve succeeded beyond most artists.

We have rights for parody and fair use, but perhaps we need to push it further, to make space for when copyright becomes culture. And then let it at the hands of the culture.

Of course, power likes to maintain power, even when it means forgetting what it was originally fighting for. The RIAA and such want to own culture – that power is so tasty. But why should we let them? When they restrict the growth of culture, they are no longer serving the people or the intentions of copyright – they are simply serving themselves. They are also unfortunately doing a good job of convincing artists that the only way to become part of culture is to go with their model. I realized that we don’t need to educate the masses – we need to educate these behemoths about culture, its creation, their role and the intentions behind the laws that they’ve used as shield for so long.

Creative Commons is fighting the RIAA on their terms, helping cement the legal structure as is. But honestly, CC is not creating culture in the same way that mass media products are. Sure, many of us want that to be the case, but will Christina and Britney ever be CC artists? Will Fox ever make its TV shows CC? Will indie ever overcome pop? The very nature of pop is that it’s about mainstream and this means buying into the power holders instead of the underdogs. That makes it really hard to overturn the cultural empire. Perhaps we should think about how to reframe the debate, focusing on the cultural output of mainstream artists rather than trying to play on their turf?

Honestly, i don’t know how but i definitely agree with Mimi that the debates miss the communication and cultural sharing aspect, focusing instead on the material component.

Update: i wrote a Part Two

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21 thoughts on “when media becomes culture: rethinking copyright issues

  1. Cory Doctorow

    EFF has always talked about copyright as a freedom-of-expression issue — that’s what the parody/criticism exemptions are for! We’ve always tried to frame this about the rights of individuals to carry on discussions about the stuff around them, to mix it into their daily round and culture, to address it in code and in speech.

    BTW, copyright isn’t supposed to help artists get work out (no copyright would be better at that!). It’s to provide an incentive to creators to create in the first place — and the US Copyright Clause in the Constitution further is pretty clear that this isn’t the only way or even the best way to provide that incentive, and that Congress isn’t required to give authors copyright unless they think it will lead to more creativity.

  2. Randy

    I think a prime example is the permeation of football terms into everyday life, and then the FedEx commercials that make light and fun of that permeation. Media infuses small sound bits into all consumers with the same context. We can all laugh at the last episode of the Daily Show because we experienced it in a similar context – television. I think that since we all can share the experience media seep into culture.

  3. Irina

    This is a great way to reconsider the debate! Communication is a good way to think about the “remix” arguments, but i think maybe you can push this a little further too… communication, but for what purpose and to what end? I think Goffman would say that your use of the concept of communication here, is analogous to self-expression. We do not assimilate all words, songs, sounds we see or hear through media, or at least we do not do so consciously with most. We make decisions as to which images, sounds, words we can/want to make ours as part of our expression of both our individuality and our allegiance to a particular tribe, a marker of our belonging, a secret handshake that we hope will be understood as a sign of membership at the same time as we claim individuality. Yet companies are continually surprised when they accidentally harness this drive and see staggering results. Like when a british ring-tone service made a deal to allow subscribers to cut a new song by a popular singer into pieces themselves, making custom ringtones and made the process easy, they had a ridiculously enthusiastic response from customers. So I guess my point is, it’s definitely communication, but what RIAA and EFF are talking about, i think, is not just communication, but the self-expression portion of it, the prop function of media on a public stage of the self.

  4. Kevin Bjorke

    I think that the hammer hit squarely and it calls into question the fundamental qualities of “intellectual property” which we so handily manage as an abstraction but struggle when dealing with it in the concrete (err, not so concrete).

    In a consumerist society personal expression can come from clothes, manufactured goods, and other mass-produced purchases largely through redaction (and price). Everyone can buy the same red Nikes but only you will wear them with tube socks embroidered with pictures of Wakko Yakko & Dot. Only you represent yourself as the complete package of choices. Easy enough for purchased objects, but problematic for ideas (though we’re all used to the idea propogated by LJ etc that a person’s personality profile can be defined as a list of the bands they like).

    It seems evident that the RIAA and their ilk are simply attempting to do the impossible (and get away with it via the force of lobbyists and lawyers): to treat the ephemeral notion of I.P. as if it were built of stone and could be permanently owned. The line between “communicating” and “copying” is perhaps a hazy one, and one that needs to be more clearly-defined before anyone can start shouting about which side of the fence their property (if any) has landed. Since this distinction was not made clear in the terms of the original purchase/lease contracts for many of these materials, it seems absurd (though not without precedent) for the RIAA to accuse anyone of violating terms that the RIAA itself is not clear on.

  5. joe

    Many of us, including your advisor, recognize that conflict and tension expose what’s really happening in social contexts.

    The RIAA is all about creating conflict. For example, I can’t (now) do novel social things like listen in on what someone else is listening to on a city bus… let alone give someone a copy of a new song that I’m shaking my ass to (like “Shake that 50 Cent” a mash-up of the lovemakers and 50 cent).

    Arguably, I’m doing a risky thing by linking to that song on my server. Under the law, you’re arguably protected against this risk.

    How the hell are people supposed to know what they can and cannot do?

    How can I create social ties with the largely black kids on the bus I ride everyday? One thing I know I can share with them is my love of music, and I think they could share a lot with me. But, instead of the last mile like in telecom, we often face problems of “the first step”… and this step in catylizing interaction is often best done with copyrighted or mashed-up stuff that people can share and interact with.

  6. Kevin Schofield

    Great comments.

    I totally agree that media has become culture. Actually, I’m not there was ever a time when media wasn’t culture; it’s just the the media have changed.

    But here’s the rub: for a company, or an industry who has made a profit from the rule of law, is it fair to come in and say “hey, your product is now part of the culture, and so you don’t own or control it anymore” ? If it’s the government delivering the message, that’s probably an exercise of “eminent domain” and according to our Constitution the government can absolutely do that anytime it wants — but it needs to fairly compensate for the property it is “taking.”

    Kevin Bjorke hit the nail on the head: in the end, this debate always comes down to whether you believe in intellectual property or not. That, of course, is nothing new; what’s new is that it’s become a firestorm because technology has created two monsters: one which makes copying of intellectual property free and trivial (favoring the consumers); and one which allows us to extend the classic two verbs that we apply to intellectual property (“read” and “copy”) to a much broader set of verbs and adverbs which were never envisioned by the writers and interpreters of fair use doctrine (favoring the IP owners). Both sides feel threatened, and both sides want to keep the new-found abilities that they have been granted by the technology.

  7. Irina

    I think it is important to understand the differences in conceptualizing “intellectual property”. I suspect most of us would agree that if feels really damn bad when someone takes our idea and makes good on it, pretending its their own – our fundamental sense of fairness is shaken and we feel cheated. In a sense, intellectual property law allows individuals to announce that a particular idea is theirs and they deserve credit (whatever form it takes) for it. The problem, i think, appears when the said form of “credit” becomes a rigid definition of payment and any other form of acknowledgement is disregarded as insufficient. Granted, why would you allow other forms of credit when payment is the most direct route to profit.

    This relationship between media artifacts (and i consider Mickey Mouse an artifact) and culture is complex. The main culprit, I suspect is the demand for change which is soundly discounted as impossible by the “old guard”. It is certainly difficult to aknowledge that your fans are telling you – we’ve always wanted to just share songs freely with each other or we’ve always wanted to cut up our favorite songs into ring tones. and yet, most only want to do it to songs from artists who are very famous… the flip side is – how did they get this fame? so there is a little question to ponder i guess – would you steal music from artists that are unkown? why or why not?

  8. Ypulse

    Ypulse Essentials

    Quick Note: Newsletter readers, the post Teenagers are from ‘Mars’ was written by Ypulse contributing editor Amanda. – Speaking of VMars…(the show had a great premiere ratings wise, especially with young women) (Zap2it.com) – While ‘Veronica’ soared …

  9. amoeda

    >would you steal music from artists that are unkown? why or why not?

    I steal indiscriminately, from the famous and the obscure. Following Mimi and Danah’s principle of sampling as instrumental to communication, I steal whatever communicates best to the people I’m trying to reach.

    I don’t know if I believe in IP, but I believe in an ethical system governing the traffic in ideas. The conventions of citation in the academic community are one such system, the etiquette of sampling in some underground cultural communities is another. In general, most individuals will not complain when an appropriation of their work amplifies their message/status/profile in the world; they will complain (and demand compensation) when they see the appropriation as defaming or competing with them. This is a judgement call that every creative entity needs to make for itself–the involvement of corporations, institutions, and to some extent laws just fucks things up and inevitably leads to injustice. I wish we could just have peer-to-peer idea-use adjudication, but of course, we can’t or we’d never have time to create anything in the first place. But in general, the more atomized and case-by-case the decisionmaking, the better. CC is great because it’s getting people in touch with their options and destabilizing the monolith of RIAA-style automatic copyright. Next, we need a strategy for helping big corporations get a sense of proportion around “infringement.” Meh, don’t really want to commit to this, just thinking out loud here, sorry, I’ve run out of crap. (Hey, look, I just stole an expression coined by my friend Chris AND THEN a line from Stephen Colbert… I really *do* have no standards!)

  10. marcus

    digital technology – with the increased horesepower and reduced costs – versus what it cost 20 years ago to create. just have me wondering why are people putting bits and pieces togther and calling it creative or new?

    the amount of new content – as well as the people creating it has swarmed skyward – i am dissappointed that most of the creation seems to be copying someones copy.

    why are so many re-makes being mixed or filmed? with the ease of access to tools – one would think the time would be for amazing new trends.

    how long before the herd of people copying people leads to everything seeming homoginized? (which is what my eyes seem to see – my brain says, “you have to be kidding me? this is the best we can do?”

  11. barb dybwad

    One of the problems is that both groups are trying to establish an imaginary line between self-expression and communication. There is no line — it’s a continuum. My self-expression has almost no value in a vacuum — it only becomes valuable when I communicate and share it. Of course, this is a meta-problem with most things legal, in general — laying down an arguably somewhat arbitrary line in the sand and trying to pretend that most actual cases in the real world don’t fall somewhere in the gray area we still seem to have so much difficulty grasping. But I digress!

    So copyright is “an incentive to creators to create in the first place” — well, how silly is that, when you think about it? Humans don’t need “incentive” to create — we are creative by nature. What copyright gives the “incentive” to do is make money. And that’s the heart of the debate — the imaginary line is drawn so that legal and business weenies can decide who gets to profit from natural human creativity. The twisted logic of capitalism has effectively inverted the natural order — to suggest that the artificial structure of monetary incentive is needed to produce the natural incentive to create is exactly the kind of doublethink that permeates capitalist culture.

    I agree with you that the CC is not creating culture “in the same way” that mass media products are — and I think that’s precisely what makes it so valuable. Mass media products embody the ugliness of fame and cultural icons because media sold to the largest possible mass of the masses makes the most cash. But it’s not a healthy relationship, nor is it natural. Mass media products are about the cult of personality, not because media produced by Christina and Britney is great art by great artists (lord knows…), but because media produced by Christina and Britney sells a shitload of copies. The only reason we can even speak about art that is “mainstream” is because MSM’s business model has been holding sway for many decades — it is only very recently that the tools of production have become cheap enough for the once-passive masses to become actors in cultural production and distribution. The proliferation of things like the ringtone mashups reveals that what the once-passive masses are discovering is precisely the natural joy of creation. It’s more fun, and more emotionally/spiritually satisfying, to make your own stuff (and share it with your friends) than simply passively consume culture that is handed down. The RIAA knows only how to make a business model out of the latter — but they’d better figure out right quick how to make a business model out of the former if they wish to retain any semblance of relevancy in the future. CC art embodies the natural joy of creation and sharing far more than it embodies any sort of business model. I think it would be a shame if CC/EFF focused on the output of mainstream artists whatsoever — who cares about the mainstream artists? That’s the point. In the same way that blog world has subverted MSM not by replacing it, but by creating an alternative model in which the A-list doesn’t *have* to matter — cultural transmissions can have their value in their local domains without achieving some kind of global recognition — CC art is creating a parallel world in which actual, reachable individuals (as opposed to icons) are creating and sharing art and finding cultural currency in their local domains, with some of that art reaching wider audiences because of its appeal and its quality moreso than any predetermined structure of fame iconography. Indie doesn’t have to become pop (though it *is* getting heavily co-opted by labels right now), and the discussion doesn’t have to be a competition that CC/EFF needs to win. However, CC/EFF embodies an aesthetic of human naturalness that the RIAA would do well to clue into if they want to figure out how to minimize the revenue loss they are experiencing as more people lose interest in passively observing (and consuming) icons.

  12. Irina

    I agree with “So copyright is “an incentive to creators to create in the first place” — well, how silly is that, when you think about it? Humans don’t need “incentive” to create — we are creative by nature.” Except I would say that some (many) of us are creative by nature in some respects (i, for example, wouldn’t put myself into an “i am creative in everything” pool. I don’t create music for example and have no desire to create it – i’ve tried and am horrible at it – but i adore consuming music). In any case, I think you are right that copyright it hardly an incentive to actually create. That’s a matter of personal drive/need/desire. Copyright, I think, is an incentive to share that creation without the fear of being hijacked by someone more capable of making money of your creativity. I disagree, however, with an outright dismissal of mainstream art and media as unimportant at this juncture. Britney and Christina may have been manufactured for fame, but so was the ipod and the latter is just as much part of the same media consumption culture. Would you dismiss the ipod as unimportant because it is ridiculously popular and is a cultural icon? The ipod, of course, is a bit harder to mimic or “remix”, it being hardware, but the idea, i think is much the same.

    Many of extremely popular media icons, at least in music, performance and art, are, indeed, brilliant artists, capable of producing brilliant art that happens to be appealing on many levels, one of which is mainstream. They question current culture, push current culture, and, in some ways define and reflect it. They also work as boundary-crossing unifying points. The bring people together in ways that are quite unique and very important. Maybe CC/EFF shouldn’t go after the mainstream artists. Instead, maybe CC/EFF need to support artists that start out with the CC/EFF model and have the potential to become cultural icons and thus gain power to perpetuate that model as viable. That would be an important step in the debate.

    By the way, on the topic of Britny or Christina not being great artists, check out Christina on one of the tracks off the latest Herbie Hancock album. You may be surprised.

  13. jordan

    I’ve been giving some thought to one piece of this for a little while now — how mass culture provides common cultural capital for increasingly mobile and connected populations. As much as I’ve critiqued the homogenizing of culture through Hollywood, network TV, and chain shops and restaurants, I’ve equally benefitted from the common ground I gain when I can talk about, say, the Daily Show or Family Guy with someone I’ve just met in a city I don’t otherwise know well. Without mass culture, traveling nationally would be like visiting many small foreign cultures with different foods and entertainment, and I’d have to acclimate all over again each time.

    And, of course, people generally ascribe their own meanings to mass cultural products, rather than interpreting them identically, whether it’s the newest Faint song or the latest Tim Burton movie. It’s what we were discussing the other day, glocalization….

    Re: communication, though — even before new media, people have relied on all kinds of cultural signifiers to communicate identity. Fashion comes to mind pretty quickly. We’ve just quickly adapted new media to serve that purpose, from usernames and avatars to .sig files and emoticons.

    I suspect that Adorno would caution, though, that the problem with mass culture still lies with its mass producers, who still retain power through their control over production. Do we want to use the language of mass media, even if we’re appropriating it, or do we want to create our own, uncopyrighted language instead? Of course, it’s a moot question when tackling corporate interests regarding copyright law — but I suppose the alternate approach is to reject relying so heavily on canned references as signifiers, and instead producing our own.

  14. zephoria

    Cory – EFF does talk about it as a freedom-of-expression issue, but they do so by assuming that everyone is an artist. I think that’s dangerous form. We shouldn’t ask everyone to be an artist. We should let them be people who happen to produce stuff in the process of consumption.

    Irina – great food for thought!

    Kevin B – i really like the thought of clothing and accessorization as remix. Oooooh….. Oooh!!!

    Joe – but it’s not just about knowing what they can and cannot do. It’s about having the freedom to produce for fun and culture and to share with friends.

    Kevin S – i do believe in IP, but not the all-encompassing version that we’re currently aiming for. If you privitize everything, it grinds creativity to a halt. Creativity and innovation are fundamentally about making connections between different ideas and building something new with them. No one innovates by sitting in isolation.

    Kenton – i totally totally disagree. We copy constantly. You learned to speak by copying what you’ve been taught. Creativity, imagination… this is all about repurposing what you see and mixing it with something new.

  15. Kevin Schofield

    I also believe, as you do, in the intellectual commons, and I don’t believe that intellectual property should stay proprietary for an indefinite amount of time. I also agree that creativity and innovation are about building upon the work of others and are almost always highly derivative — and we need to support that. Which of course brings us full circle, back to fair use doctrine, a concept remarkably ill-defined in written and case law for something so critical to the current debate.

  16. suzanne stefanac

    Excellent conversation here. One thing I’ve been thinking a lot about is how the long tail might actually play out. I think about things like Flickr and the individuals who choose to put up photos under CC licenses. Many of these photos are really lovely and on a par professionally with many in the commercial photo archives. It makes sense that someone who needed a photo of the Eiffel Tower or a cat doing a somersault for a project might do a search and choose one from Flickr rather than going to a stock house. If the image falls under a CC license, the photographer can choose whether or not attribution is required. There may or may not be payment as part of the exchange. What’s important is that alternative content is available to the general public to a degree that is unprecedented.

    As these bottom-up archives become more robust and easier to search, particularly if they are accompanied by commenting and link counts and other mechanisms for building authority, they may find enough willing creators and “remixers” to be self-sustaining. I doubt these homegrown archives will replace mainstream distribution completely, but the hegemony that now constrains the inventory will find itself eroded and our options as both creators and consumers has the potential to open up in ways we probably can’t even envision at this point.

    I am cautiously hopeful for the first time in a while.

  17. Irina

    one more little thing… or err well a few more little things:
    1. copying – i chanced on a psych journal today which had an interesting article on something called the “mirror neurons”. The idea is that there is actually a structure in our brain dedicated to our ability to mimic and copy. In fact, it is this structure that enables us to be a society in a way. Some beginnings of this structure are actually evident in the great apes as well (chimps were an example), but far far less developed. so maybe ability to mimic and copy is essentially a basis for much of what we are? (i will go dredge up a reference to this one now… v. sloppy of me).

    2. it occured to me after re-reading all of this and teaching in an effort to procrastinate a class on org communication, that much of innovation is actually about reuse of ideas. In fact, in a BBC video about IDEO, director of IDEO pretty much states approximately the following: “good design is inspired stealing of ideas implemented in any number of domains” – if the very base of our creativity often comes from this “inspired stealing”, then over-regulation of this process may, in fact, be detrimental to not only iterative innovation but radical innovation as well.

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