Fair Game: Intellectual Property in the Digital Age

The line between creative allusion and outright appropriation has always been a thin and unstable one, constantly being redrawn as our attitudes toward borrowing shift and change, and the Internet and digital media have forced the most radical rethinking of this boundary in at least a generation.

Napster and its successors threw the music industry into a downward spiral by expediting and simplifying a task that once took many cassette tapes and at least a couple hours to complete; cutting and pasting made it that much easier to lift language from other writers and quietly forget to credit them; the ability to take a screenshot—a standard feature of today’s computers—lets us save images we don’t technically “own.”

Piracy and plagiarism can happen in the blink of an eye, but so can new creations: the artistic achievements of the past didn’t occur in a vacuum, they built on their contexts, “sampling” the intellectual environment of the time to create something new. This is something Ezra Pound knew when he crafted his Cathaypoems. This is something early hip hop artists like DJ Kool Herc, Afrika Bambaataa, and Grand Wizzard Theodore knew when they started thinking of the finished products of someone else’s artistic efforts—the LP—as tools to facilitate their own. And this is something that the artist John Oswald understood and took to its extreme with his practice of “plunderphonics.”

In 1989, Oswald released Plunderphonic, a CD of songs by such artists as The Beatles, Public Enemy, and Glenn Gould, with all those artists’ tracks cut up and remixed to the point that they became new creations. Perhaps the most radical “song” on the CD was a re-recording of Dolly Parton’s “The Great Pretender,” played in its entirety but slowed down to the point of almost being unrecognizable. Oswald clearly violated copyright law, and was therefore forced to destroy all copies of the CD, but the plundering didn’t stop with him. The means to plunder grow more prevalent every day, so much so that blogger Dave Taylor feels the need to ask, “is copyright irrelevant?” Taylor wants specifically to know whether the laws protecting photo images deserve to be reexamined, and in many ways they do.

It’s not just the laws and assumptions around images that need updating, the plundering advances in literature as well: in the New York Times, Michiko Kakutani recently reviewed David Shields’s novel, “Reality Hunger,” which “consists of 618 fragments, including hundreds of quotations taken from other writers like Philip Roth, Joan Didion and Saul Bellow—quotations that Mr. Shields…has taken out of context and in some cases, he says, ‘also revised, at least a little—for the sake of compression, consistency or whim.’” Our digital culture has fractured information and the shards float freely in and out of attribution, shouldn’t our creative practices reflect this reality?

But while society may seem to be moving in that direction, no matter how much this “plundering” may seem to chip away at our intellectual hierarchies, the politics of allusion and borrowing continues to be shaped by the existing power dynamics of ownership. That’s why advocates of a world of free and therefore free-flowing content sometimes risk shortchanging those who have historically been wronged by cultural and intellectual appropriation or outright theft. The idea behind the website Creative Commons is to make it “easier for people to share and build upon the work of others,” with the caveat that they operate within extant copyright laws. Manifestos abound on the Web declaring that the future depends on the abolition of copyright, most along the lines of FreeRight‘s argument that ideas “are not owned by an individual or corporation” and should therefore “be freely available as seeds for more ideas, and not bound and haggled over by lawyers and politicians.”

Obviously, these are manifestos declaring how the world should be, not how it is. And when ideas, sounds, images are taken without consent, in today’s world, someone ends up losing in terms of getting the credit and in terms of getting the money that sometimes accompanies that credit. While I find myself largely agreeing with these models for the free, de-monetized flow of ideas and information, I can’t help thinking about how the application of these models within the existing system often leaves someone empty-handed. I have a hard time feeling bad when Metallica or any part of the music industry gets the short end of the stick in this situation, but the politics of borrowing are necessarily more complex than that highly publicized instance. Think of Daniel Morel, for instance, the Haitian photojournalist whose images of the aftermath of January’s earthquake were widely used by media outlets without his knowledge or permission. Morel posted his images online and advertised them on Twitter in the hopes that his images would reach the world. As is the nature of the Web, his pictures were used without his consent, and in ways he had not approved. But Morel is a professional photographer who does work for an established agency, and he was therefore able to get a lawyer to enforce the copyright on his images. If he hadn’t had that kind of institutional backing, perhaps he wouldn’t have been able to benefit from copyright law and his pictures would have become part of the “creative commons” against his will.

In many ways, intellectual property laws are fighting a losing battle with new modes of creation and expression eroding the copyright model. But those of us who want a free and open intellectual environment will have to change much more than just how much we can plunder if we want the exchange to be beneficial to everyone who creates.