A few weeks ago, I delighted in a entertaining Simpsons spoof of Woodstock and the baby industry. The jokes were everywhere, and I had to stop the VCR just to catch my breath. The Simpsons has just been getting fresher and funnier and better. However, the multitude of cultural references (Who songs, etc.) in the episode were things only a major multibillion dollar media empire could bankroll the rights for (and yet, as Lessig notes, this same company can be ruthlessly mercenary when demanding tribute from underlings). These delightful cultural references and spoofs are something which Fox's legal department can easily clear the rights for, but very few independent artists could afford to do.
One solution, of course, is for the artist to rely on stock footage or to wade through the creative commons archives. But in this day and age we are surrounded by CNN, Britney Spears, American Idol, Simpsons, Harry Potter and Lord of the Rings. Should artists pretend that pop culture just doesn't exist? To do that implies that postmodernism as an artistic movement no longer is relevant. Even the standard of "fair use" seems insufficient (and technologically difficult to define). It seems intended to support secondary works (criticism that shines a light on the original work in question) rather than primary works (Variations on a Theme by Paganini, The Wind Done Gone, etc). As an artist, I feel I can no longer borrow/steal/coopt from my cultural environs without forswearing commercial possibilities. If I publish "underground," then I do it knowing that censorship is one cease and desist letter away.
As Lessig wrote, we now live in a "permission culture," where things are presumed to be forbidden unless we gain "clearance" beforehand. At a recent South by Southwest panel on copyright and creative commons, I posed a question to the panelists: When we turn away from billboards, cable shows and pop songs all around us, are we as artists ignoring our duty to portray the world? In film and literature classes, we were taught to delight in the admixture of high culture and low culture in the cultural space. We were supposed to applaud Andy Warhol's coopting of soupcans and feel liberated enough to recontextualize the same commercial icons that were drowning the world in banality. Now corporations own these references. And vigorously enforces its copyright and in some cases trademarks. In fact, that is one benefit to accrue to these companies from consolidation. Artists no longer collaborate or offer advice; instead one artist's legal department has to negotiate with the other artist's legal department. And for artists without the benefit of a commercial backer, well, there's always 19th century works to plunder from.
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Article comments
1 - Shark
full story
FYI: Pretty significant victory last week re. artists and copyrighted/trademark materials. Check it out; it should warm the postmodern cockles of your heart.
2 - Eric Olsen
Excellent job on very important territory we have been trying to cover all along - personal and immediate is always more effective. Thanks and welcome, Robert!
3 - Robert Nagle
I just wanted to update my thoughts here. Apparently, the federal court decision about the Wind Done Him Wrong (PDF) court decision covers use of fictional characters for commercial works. So perhaps copyright owners do not have as much veto power as originally supposed.
However, the threat is still there, and in cases where the borrowing is not a reworking of the original content(sampling), you're in uncertain waters.