In early July of 2016 a video appeared on Vimeo entitled The Was. The 13 minute film was credited as a collaboration between plunderphonics group The Avalanches and video artists Soda_Jerk. Due to the monumental volume of video and audio samples the piece contained it was no surprise to see it taken down pretty quickly due to a copyright complaint, but it was already too late. The film had taken on a life of its own being shared around Reddit and bouncing around the internet from mirror to mirror. It was out there.
Both The Avalanches and Soda_Jerk never made explicit public statements about the piece and one of the on-screen co-directors was amusingly credited as Al Smithee, a long-running pseudonym filmmakers have used when wanting to take their name off a film they didn't want to be associated with. Despite the entire film, both picture and sound, being constructed from pre-existing samples, The Was proved to be an exciting and wholly original work of art. But how could that be?
How could it be both derivative and original? Can something original be created from pieces of other people's work? What if there was no such thing as an original creation? If all creative work is in some way derivative, how do we create a copyright system that doesn't stifle creativity?
In Kirby Ferguson's sensational short documentary series, Everything Is A Remix he claims there are three steps involved when any artist creates a "new" work: Copy, Transform & Combine. No artwork is ever created in a vacuum, void of any influence. Much like science or philosophical thought, every new idea or advance is a stepping stone built on the foundation of what came before it.
"All artists spend their formative years producing derivative work. Bob Dylan's first album contained eleven cover songs… And Hunter S. Thompson re-typed The Great Gatsby just to get the feel of writing a great novel." Kirby Ferguson, Everything is a Remix
Copying is a dirty word in today's society. Synonymous with plagiarism, when one gets accused of copying it is always with a sneer but what if we consider that all new artworks were in a sense a copy of something?
In early 2010, artist Nina Paley had the realization that all art existed within this flow of temporal evolution, building and copying prior ideas. Inspired by the clear connections she saw between Greek and Indian sculpture she concluded that, "A time-travelling IP lawyer could find all kinds of infringements at the Met. Greeks, Egyptians, and South Asians influenced each other heavily; was this 'borrowing,' 'stealing,' or 'copyright infringement?'"
Her ultimate goal was to show how all art is connected and she created a two minute video entitled, All Creative Work Is Derivative (video below) to highlight her point. The video speedily cuts between sculptural works from different eras and geographical locations to highlight a similarity between these pieces. This temporal flow from copy to copy to copy is shown to be a definitive characteristic that can be found in all artistic arenas.
Music also has a long history of copying or "sampling" and this tradition goes back as far as can be studied. Legendary classical composers such as Bach, Mozart and Beethoven all copied the work of others to some degree. Robert Weisberg has traced the musical derivations of several classical composers, in particular Mozart. He discovered that much of Mozart's work contained melodies that appeared in other composer's pieces and that almost all of Mozart's final symphony can be traced to earlier works.
Weisberg calls this "borrowing" but within a more modern framework we could call it copying or more politely, "sampling." Permission was not granted, melodies were rarely transformed - they were merely lifted and re-purposed into another creative work. Johann Sebastian Bach is another major name who is shown to have constantly used other people's work in the construction of his pieces. Norman Carrell, a music historian spent a great deal of time studying the influences in Bach's work and concluded that more than 80 of his non-vocal pieces contained "borrowing" from other composers and over 200 of his vocal works contained a classic Lutheran hymn melody. If these composers were working today their work would be a nightmare of entangled copyright infringement cases.
Shakespeare was a mash-up artist
In a BBC news-poll conducted in 1999, Shakespeare was crowned the greatest writer of the last millennium, easily taking poll position. Surely a writer this great and influential must have been original?
In fact Shakespeare appears to have been one of the biggest mash-up artists of the millennium. All but three of his plays are based on clearly borrowed plots while much of his poetic prose can be either directly traced back to Plutarch or more controversially linked to his contemporary, Marlowe. Looking at Shakespeare's King Lear, for example, we can find his plot was structured from at least four separate sources.
Recombining several pre-existing narratives into a new whole was Shakespeare's stock in trade. If he was working today we would probably be calling him an artist who solely works in adaptations or remakes.
One writer, well schooled in modern copyright law, amusingly analyzed King Lear as if it were written today and came to the conclusion that there are at least half a dozen valid copyright infringement cases present in Shakespeare's classic play: "If King Lear had been written anyway, despite the odds, Shakespeare could have been sued for copyright infringement, one case after another, and his reputation would have been ruined, probably being branded a willful copyright infringer instead of an artistic genius, which he was, willfulness being assumed under the law, a rebuttable presumption, and he'd have likely faced damages equivalent to a lifetime of indentured servitude."
We clearly begin to see the contrast between modern notions of copyright and early considerations of the concept. Back in the 15th and 16th centuries when ideas of creative ownership were being broadly defined, the conception of copyright was primarily limited to commercial reproduction. The thought that someone could own an "idea" was anathema to most creative types for much of the last millennium. The war over copyright was a very literal battle over the right to copy and nothing more.
As technology evolved the tools artists had at their disposal changed but the act of creation stayed the same. By the early 21st century, computers and digital technology enabled artists to copy, transform and combine in ways that we hadn't seen before. Artists now were able to directly lift music samples, film clips or images and incorporate them into their pieces in new and innovative ways yet persistent accusations of plagiarism or unoriginality hounded them. Mozart used samples and Shakespeare was a mash-up artist.
Creation in the 21st century
Ophir Kutiel was a bored musician sitting in his apartment in Tel Aviv when one day he stumbled across a YouTube video of a man playing the drums. Realizing that this drum loop could sound great with a guitar and bass he simply punched those search terms into YouTube and before he knew it had constructed an entire song out of sounds found in videos on YouTube. In a definitive example of digital remix culture at its most innovative, Kutiel (under the name, Kutiman) created an entire album of music using this technique. All the videos he appropriated were from amateur musicians who simply uploaded a video of themselves playing around with their given instruments.
Kutiman's work turned out to be a supreme example of how remix culture in tandem with technological advances that were unavailable to anyone as recently as a decade ago could spawn magnificent works of creativity. While he certainly could have constructed similar pieces of music from elements individually recorded in a studio it would have fundamentally defeated the purpose of the project, for it is the re-purposing of these found elements into a new creative work that gives his music such an innovative power.
One of Soda_Jerk's early creations was an ambitious remix project aimed at creating a 60 minute narrative feature entirely out of samples. Pixel Pirate II: Attack Of The Astro Elvis Video Clone took this creative duo four years to create and ultimately comprised of over 300 different audio and video samples. The final result was a high watermark in early digital remix culture with Soda-Jerk crafting a narrative that itself acted as a call to arms over remix rights and a violent attack on current copyright monopolies. The Pixel Pirate project was essentially illegal, and Soda_Jerk's purpose in making the film was to create something that could not exist under current copyright policies.
In a statement released with the film the duo turned the work into a call to arms. They wrote, "... copyright is not just about cash, it's also about control. Money doesn't buy you sample rights unless you're using those samples in a way that is pleasing to the proprietor (i.e. not mashing Elvis with Jesus). The battle over copyright then is also the battle over history – what is at stake is the very relationship of the past to the present."
Not one sample used in Pixel Pirate II was cleared and not only did Soda_Jerk ultimately receive zero copyright infringement notices, but in the intervening years they have become celebrated as pioneers of remix culture with their work screening in prestigious galleries around the world.
Soda_Jerk's elevation into serious "high-art" circles is not only a significant event for remix culture, but also a serious statement from the art world regarding new attitudes towards copyright. For Soda_Jerk's work to be so accepted by mainstream art circles meant that not only was remix culture being seen as a valid form of artistic creation but it also highlighted a wider awareness in the art world that there are some serious problems with modern copyright policy.
This explosion of new creative possibilities driven by 21st century digital technology has of course resulted in significant conflict and tension with classically conceived copyright policies.
So what's the deal with our current copyright model? Are 20th century notions of copyright outdated? Our next article will investigate.
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