Record companies, book publishers, movie studios and other media corporations are caught up in efforts to equate all copying of their works with theft. In fact, if we genuinely want to promote creativity, we must encourage copying.
The idea that people copy because they lack creativity is powerfully harmful, and it runs counter to the history of copyright.
For the first 300 years that copyright laws existed, the right to prevent unauthorized copying was determined not by property rules, but by reference to whether the defendant’s work added new insights -- whether the copier, too, was creating something. Verbatim copying, mere paraphrasing or qualitative copying of the heart of the work were all prohibited, because such copying did not provide new insights or evidence any creativity, but only acted as a substitute for the original. Yet there was considerable leeway for other kinds of unauthorized copying.
In the 1803 English case of Cary v. Kearsley, Lord Ellenborough nicely summed up the policy: “That part of the work of one author is found in another, is not of itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another: he may so make use of another’s labours for the promotion of science, and the benefit of the public. ... While I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles on science.” (Science here referred to the 18th-century conception of knowledge.)
Art in Context
Literature, music and the arts flourished under this policy, and for good reason: All works exist only in context with past and present authors and culture. That’s what Hans-Georg Gadamer meant when he wrote: “Understanding is to be thought of less as a subjective act than as participating in an event of tradition, a process of transmission in which past and present are constantly mediated.”
It is equally true of authors, as T.S. Eliot wrote: “The historical sense compels a man to write not merely with his own generation in his bones, but with a feeling that the whole of literature from Homer and within it the whole of the literature of his own country has a simultaneous existence and composes a simultaneous order.”
Even those who purport to rebel against tradition do so in relation to that tradition. The late Canadian pianist Glenn Gould made this point in discussing the music of Arnold Schoenberg: “Whenever one honestly defies a tradition, one becomes, in reality, the more responsible to it.” Creativity requires the breathing space necessary to permit all authors to draw on the whole of culture.
Regrettably, we have undergone a change in policy that works against the creative process. The current trend is toward finding that even minimal uses infringe copyright law. Instead of encouraging new works, we are fast adopting a property-based theory of absolute ownership.
Consider how hip-hop music has been changed by a series of court opinions in the past 20 years finding infringement for the creative copying and alteration of tiny amounts from recorded performances. The most important of these opinions came from the U.S. Court of Appeals for the 6th Circuit.
The case arose from the unauthorized use of a very short sample from a sound recording by the immortal George Clinton and Funkadelic. The use first occurred in the rap song “100 Miles and Runnin’,” the second in the soundtrack of the movie “I Got the Hook Up.” The second use consisted of a two-second sample of a guitar chord. In this case, the defendant lowered the pitch and then looped the sample to last 16 beats. The sample was used in five places in the movie, with each looped segment lasting approximately seven seconds.
Because of the transformative way in which the samples were copied, a lower court had found no infringement. “Even one familiar with the works of George Clinton would [not] recognize the source of the sample without having been told of its source,” that court observed.
But the federal appeals court reversed that verdict in an opinion that contains almost every error that can be made in construing the U.S. Copyright Act. To begin with, the court adopted a different approach to infringement of a musical composition than for infringement of the recorded performance of it. For compositions, the court acknowledged there is no infringement from transformative copying. For sound recordings, however, the court held there is no such threshold; copying of any amount infringes copyright.
Since that decision, record companies have been unwilling to release albums unless each and every sample is cleared. Previous hip-hop albums used hundreds, sometimes thousands, of samples, but licensing that number is prohibitively difficult and expensive. Instead, hip-hop changed its creative process.
The sampling issue illustrates a fundamental transformation in copyright law. Once a tool for creativity, it has become focused on permission. All uses, no matter how trivial or irrelevant to artists’ incomes, are declared licensable. Yet culture can be built only from shared knowledge, and generous use of one another’s creations.
A 1971 note from John Lennon to New York Times reporter Craig McGregor addresses this point. McGregor had written a piece called “The Beatles Betrayal,” accusing the group of “ripping off” black artists. Lennon responded:
“‘Money,’ ‘Twist ‘n’ Shout,’ ‘You Really Got a Hold on Me,’ were all numbers we used to sing in the dance halls around Britain, mainly Liverpool. It was only natural that we tried to do it as near to the record as we could -- I always wished we could have done them even closer to the original. We didn’t sing our own songs in the early days -- they weren’t good enough.”
Tradition of Copying
It has been a tradition for hundreds of years for aspiring painters to go to museums and faithfully copy works hanging there. Poets, choreographers and novelists also find their voices only after long periods of imitation. As the literary critic Northrop Frey wrote: “Poetry can only be made out of other poems; novels out of other novels.” James Joyce’s “Ulysses” is closely patterned after Homer’s “The Odyssey,” yet at the same time it is very much a part of its own 20th century.
To deny people the right to copy, intimately, from others, is to deny the essence of what it is to be a creative person.
The most damaging consequence of the movement to turn culture into private property is the largely successful change in attitude toward creativity and copying. Creative people are supposedly those who do not copy or imitate others; copying is supposedly theft.
In truth, creative people must copy and must imitate others. Our copyright laws should be changed to reflect this reality.
(William Patry, senior copyright counsel at Google Inc., is the author of “Moral Panics and the Copyright Wars” “Patry on Copyright” and “Patry on Fair Use.” This is the second in a three-part series of excerpts from his new book, “How to Fix Copyright,” to be published Jan. 5 by Oxford University Press. The opinions expressed are his own. Read Part 1.)
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