The remix wars: Copyright and the Socially Awkward Penguin

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One of the primary problems with current copyright policy is that it doesn't satisfactorily accommodate for, or even understand, transformative creative processes(Credit: toucanet/Depositphotos)

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Is there nothing new under the sun? In this series of articles we will examine how 21st century digital technology has given artists a set of tools that have dismantled traditional definitions of originality and is challenging the notions of copyright that came to dominate much of the 20th century. Part one explored the potential myth of originality and studied the rise of remix as a legitimate form of creativity. In this concluding article we will investigate how our current copyright policies evolved while considering how fair modern fair use exceptions actually are.

Dubbed "the defining monument of the remix age," video artist Christian Marclay's The Clock debuted in London in 2010. The exhibit was both a 24-hour movie and a functioning clock. Marclay and a team of assistants spent three years trawling through thousands of Hollywood movies for shots of clocks. The artist then assembled all these clips into a 24-hour film which, once triggered, corresponded exactly with the real time of the viewer.

None of the approximately 10,000 clips in The Clock were used with the permission of the copyright holders and while many of the film's exhibition showings were unticketed (in an attempt to stave off accusations of "commercial use"), six copies of the film were made. Bidding wars by galleries ensued and each copy reportedly sold for hundreds of thousands of dollars. Marclay undoubtedly made some money off the project yet not one copyright holder was paid for the use or sued him for infringement.

Late in 2015 a small German culture blog called the Geeksisters received a strongly worded copyright infringement notice from the powerhouse stock image company Getty Images. An email back and forth began between the blog and the company. The bloggers discovered the source of the infringement was their use of a famous internet meme called the "Socially Awkward Penguin." The infringing posts were already three years old and Getty Images claimed the penguin image at the source of this prolific meme was generated from an image it had the rights to license.

The bloggers had made no money from this simple reposting of a well-published internet meme and not only were they asked to pay €748, but the legal letter demanded they remain silent about the situation otherwise lawyers would step in. The blog paid the outstanding license fee but refused to stay silent and went public in revealing how dysfunctional modern copyright laws have become.

How can we reconcile a system where a powerful, well-exhibited artist can potentially infringe on copyright with no repercussions yet some small-time bloggers are strong-armed for a few hundred Euros?

To understand how we ended up with such a complex and dysfunctional mess of a copyright system we need to travel back in time and examine the origins of these policies. The evolution of Copyright is essentially a history lesson in how governments have badly negotiated their relationships in balancing legislation with technological advancements.

Copyright: simply the right to copy

Copyright has existed for over 300 years in some form and its scope has been consistently broadening over that period from what was originally a very narrow policy. In 1710 when copyright was first spawned it was literally designed to control the right to copy and nothing more. Dubbed "The Statute of Anne," this was the first government policy that moved to regulate who profits from publishing a work and limiting the time frame (only 14 years initially) before content could pass into the public domain.

There were no restrictions on how a work was used, performed or even transformed, but rather this statute specifically enabled certain publishers the right to have sole monopoly over printing certain books for a very limited period of time. It had almost nothing to do with the creator of the work or how that work was used or repurposed by the public – the central idea was to protect the publisher and his profits as the technology of printing presses was becoming more prolific.

Over subsequent years as each media technological advancement took hold, policy makers played a game of catch-up over the issue of copyright. In 1906, composer John Philip Sousa petitioned the US congress to address a deficit in the law. While copyright protection at the time gave Sousa the right to control public performances of his work and reproductions of sheet music, policy had not caught up with phonograph technology. Player pianos and records were being produced and there was no regulation in the law allowing composers compensation for recorded copies of their music being distributed.

This same story goes on and on, from Universal suing Sony in 1976 claiming its VCR technology advanced "piracy" to the infamous "Home Taping Is Killing Music" campaign of the 1980s where several major record labels banded together to fight the scourge that was people making cassette mix-tapes at home. All of these conflicts in policy derived from technological advancements but also, significantly, all of these conflicts were centered on controlling or maintaining the profit streams of a given artistic work as new technologies of media duplication arose.

There is little argument from anyone that artists (and distributors) should have policy protection to maintain profit streams from their work, in fact that should be the primary action of a functional copyright law. Those that pirate and unlawfully distribute or sell copies of someone else's work should be prosecuted. But what of new creative works that don't conflict with prior profit streams? Does Soda-Jerk's Pixel Pirate film take any income from the dozens of classic Hollywood films it samples? Is someone watching that film instead of buying or renting Ghostbusters?

We reach the 21st century and find copyright facing the biggest conflict yet seen in that precarious balancing act of technological advancement, cultural output and governmental copyright policy.

Digital culture and transformative uses

Siva Vaidhyanathan's book, Copyrights and Copywrongs chronicles this definable tightening of copyright protections over the last 100 years and concludes that over this time, "the law has lost sight of its original charge: to encourage creativity, science and democracy. Instead, the law now protects the producers and taxes consumers. It rewards works already created and limits the works yet to be created. The law has lost its mission ..."

One of the primary problems with current copyright policy is that it doesn't satisfactorily accommodate for, or even understand, transformative creative processes. Up until recently this wasn't a significant problem as modes of publishing were still the privilege of large corporations either through broadcasting or print. It wasn't such an issue if someone photocopied a random image a few times to advertise their local band performance. But as the internet spread and a wide publishing reach became possible for anyone with a home computer and a blog, the issue of how copyright is managed and implemented became a greater concern.

The most fundamental question became one of how to allow for a system that can accommodate a variety of transformative uses. Can an individual take a piece of something created by someone else, transform it into a new thing, and then redistribute their creation?

Modern artists rely on the conception of fair use policies as a way to incorporate pre-existing materials into their new works. The current fair use doctrine was codified in the Copyright Act of 1976 when US congress attempted to clearly categorize legal uses of copyrighted materials that didn't need permissions from the copyright holder. The 1976 legislation stated fair use covered applications for criticism, comment, news reporting, teaching, scholarship, parody or research, but over the intervening years we've seen a constant parade of court cases trying to define the limits of those uses.

Simply transforming a prior work into something else isn't automatically a defense against copyright infringement even when it sits under one of the fair use applications. One of the most notable court cases to set the tone for modern transformative fair use came in 1994 when the license holders of Roy Orbison's classic song "Oh, Pretty Woman" sued the group 2 Live Crew for their song "Pretty Woman." The initial case was won by the rap group with a finding that the song passed fair use criteria under the parody application but a Court of Appeals found the contrary and reversed the decision. Ultimately the case ended up at a Supreme Court hearing and 2 Live Crew were found to indeed have fit the criteria of fair use.

This was a win for transformative fair use policies but it established the current copyright system to be a minefield of subjective interpretation serving only those willing to spend big bucks proving their cases in court, and the subsequent 20 years have been filled with legal battles highlighting the lack of clarity our current policies hold.

Law professor Nicolas Suzor from the Queensland University of Technology in Australia is a notable advocate for adding more clearly defined transformative uses into modern copyright policy. His main claim is that if a prior work is substantially transformed either through literal alterations or mere re-contextualization of meaning then it can be considered a new work, expressing a new idea and it does not infringe upon the copyright of the individual element. Suzor sums it up in saying, "transformative uses of copyright material which are not substitutable for the original expression should not be found to reproduce a substantial part of the original."

Suzor doesn't distinguish between commercial and non-commercial uses in regards to the newly transformed materials. If we agree that copyright should primarily be a system set up to protect the ability of an artist to profit off their creative works then as long as those profit streams are not interrupted, there shouldn't be a problem.

Who controls creativity?

The issue we ultimately face becomes one of control. Does a creator have the right to control how their content is repurposed in a 21st century digital landscape where re-purposing and reproduction is just a click away?

The uncomfortable answer is ... maybe not.

Appropriation artist Richard Prince has faced numerous copyright infringement lawsuits over the years. His art practice seems willfully designed to challenge current laws and one recent case in particular is pushing hard at the limits of what can be regarded legal under transformative fair use.

An exhibition entitled "New Portraits" arose in 2015 and in it Prince took several Instagram images without permission, added a frame and new comments from himself underneath. The exhibition profoundly, and perhaps intentionally, sat at the boundary of what is legal fair use and what isn't. The fact that Prince was also selling the prints for significant sums brought into question issues of commercial gain. It was no surprise that by 2016 he was entrenched in a court battle over those very questions.

The case is still unresolved, but it's quite possible that Prince will win and the result will set a precedent for even broader transformative allowances than ever. Of course, with the current degree of abstractions present in fair use allowances, one wonders whether they are only useful to those rich and powerful enough to challenge infringements in court?

While well-resourced artists like Christian Marclay can roll the dice with their appropriation art, knowing that if an infringement claim comes their way they can fund a legal fair use battle, where does this leave smaller amateur artists? When bloggers receive an infringement notice for posting a well-published meme, they have little recourse to a fair use claim despite quite likely being on the correct side of the law. How many of us have tens of thousands of dollars to face up to a large corporation and defend our fair use?

One of the Instagram photos appropriated by Prince in his exhibition came from a model named Doe Deere, who is part of a collective called the SuicideGirls. It turned out that several of the images in Prince's exhibition were lifted from the Instagram stream of this alternative, punk-styled group. Rather than embark upon the costly (and perhaps legally fruitless) course of legal action, the collective decided to play Prince at his own game and made up equal sized prints of the images that Prince created. The prints were available for sale on their website for $90, a significant bargain considering Prince's prints were going for roughly $90,000 a piece.

In a post on their website the SuicideGirls founder wrote, "Do we have Mr. Prince's permission to sell these prints? We have the same permission from him that he had from us." Prince later retweeted the SuicideGirls comments and in an interview called the move, "smart."

So how do we move forward in a landscape that is undeniably overcomplicated by a rickety and ambiguous legal framework? A landscape that, while allowing for fair use, still privileges the rich and powerful, be they distributors or artists.

The confronting truth is that society's cultural objects need to be freely available to repurpose even when we may not like the way they are appropriated. A free and creatively inspired culture must allow its citizens the ability to consume and interact with cultural objects in their own ways.

Building a better copyright system is the ultimate necessity here. Governments need to better understand how their citizens are using rather than consuming media products and policies need clarification and simplification so those without the ability to fight costly legal battles have the same access to our cultural objects as those in positions of privilege and power. The myth of originality is dissipating and once it becomes clear that all artistic creations are in some way studded with the influence of their forebears we can more comfortably appreciate the innovative output of remix culture and think about reframing copyright in a clearer and more straightforward way.

We don't need to be completely free of copyright but we need a fair copyright policy.

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