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How Now Copyright? - A Response To A Response

Response to Arthur's Response

Citing the "mashup" as "the worst thing that has happened to artistic creation since the invention of television and free agency in baseball" is to forget that the "mashup" is how any art gets made.  No inventor creates something in the way that Athena burst forth from the head of Zeus when Hephaestus cracked open his skull, that is, something without antecedent, without an origin story, without some debt to (dare I say it?) to the "public domain."

This is precisely the point Nina Paley made in stripping her wonderful work, Sita Sings The Blues, of all copyright restrictions: "From the shared culture it came, and back into the shared culture it goes."

For me, the more things there are to mash up into new forms, the better off everyone will be, not just in the arts but in all aspects of intellectual study -- "mashup" is just a synonym for "the free market of ideas," and the public domain, where everybody has a library card to borrow the materials, is where this market can play out the trading that results in new ideas, new practices, new directions.

This fertility -- its power to nourish and propel -- is why we can't follow my colleague's advice and do only "archival performances" (my term, not his) of past work.  Shaw had every right to issue his cease-and-desist then, but I don't think anyone can make a defensible aesthetic argument that his work is well-served by issuing one now on his behalf, and there's certainly no legal basis for it either.

Perhaps Shakespeare is more to the point here, since competing versions of some of his plays defy citing any one manuscript as definitive, Arthur's "the original words."  (Kenneth Branagh, for his film version of Hamlet, simply mashed together every version he could find into one script, which is why the film runs for four hours with an intermission.)  There is no ur-Shakespeare text, and certainly no ur-Shakespeare performance (we have no settled picture of what happened on an Elizabethan stage), and thus no ur-Shakespeare to which we must always remain faithful.  

And even if such a thing did exist, doing R&J in 2014, even following every jot and tittle, will not be the same as a production done in 1614: we can mimic the practice but we can't access the spirit and mind-set of that time.  We are different people living in a different world, and our R&J will be an automatic betrayal of the original.

Rebecca Solnit's point about "the Internet" is a good one in terms of its effects on artists' livelihoods.  However, it's not "the Internet's" fault but the way people use and abuse this vast infrastructure for sharing information -- a subject too large to parse here but one which touches upon the ethic of the public domain and a regulated commons.

But it certainly has thrown into disarray old notions of ownership and control and property and contract, which, to me, is a very good thing since many of these notions were restrictive, exploitative, and rent-seeking, and needed to be challenged.  Going back to a situation where "the permission [to change things] is no longer available" is to go back to the very practices that "the Internet" has up-ended.

The "mashup" is how stuff gets made.  The source material for the mashup is both the universe of all created artifacts and the cultural "air" we all breathe as citizens of some collective.  Given the capitalistic way we have chosen to arrange our current collective, it makes sense to define creation as "property" and afford it some of its protections.

The debate is over the extent and power of those protections, and my contention is to give them a statute of limitations that balances inventors' abilities to make some money off their efforts and the public domain's need for new stuff to mash up.  I believe this is a fair trade, given how the public domain seeds everything of value created by anyone who lives in its midst.

Michael Bettencourt

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