Where do the lines stand? We now live in an age where borrowing, copying and reusing creative works is the rule. From music remix culture to the more current trend in lifting authored written works for use in new publications, the boundaries of fair use and appropriation are blurred through the lens of this new participatory culture.
As the debate stands, there are quite a few sides to join. In this essay we will examine the scope of the copyleft movement and identify the beneficial aspects of adopting a Creative Commons-style approach to appropriation. In doing so, we will gain support from original copyright provisions in the United States Constitution as well as current real-life examples of the benefits. In appropriation of others’ works, it is important to respect the copyright holder’s rights. At the same time, in order for creative culture to progress, creators must be open to allowing their works to be referenced, used, and incorporated into new art forms.
Modern copyright law is a far cry from its roots, and provisions on fair use are not so fair. The United States Constitution declares,
“The Congress shall have Power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; (Article I, Section 8, emphasis mine)”
Today, copyright provisions last too long and in turn stifle the “Progress of Science and useful Arts.” In 1998 the time limit became the life of the author (or creator) plus 70 years with the passing of the Sonny Bono Copyright Extension Act. As Marc Garcelon (2009) points out, this is far longer than the “original 14-year limit that copyright established in 1790 (p. 1308).” In doing so, Congress further blurred the distinction between ideas and expression that Thomas Jefferson originally intended in writing the constitution (p. 1308).
“Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it… (Jefferson, 1813)”
In response Creative Commons, desirous of recovering the original spirit of copyright law, is a prime example of how appropriation can work to the benefit of every person involved. From their website, “Creative Commons defines the spectrum of possibilities between full copyright and the public domain. From all rights reserved to no rights reserved. Our licenses help you keep your copyright while allowing certain uses of your work — a ‘some rights reserved’ copyright.”
A copyright holder may license certain uses of their work with certain provisions. For instance, a copyright holder may choose that verbatim sharing of a written article is acceptable as long as attribution is made alongside the use. Or perhaps that someone may use a photograph without profit motive, or as a derivative to a new use. Commonly, musicians will license songs for sampling and remixing purposes under a Creative Commons-style license.
However, more open attribution will not happen until copyright holders are willing to allow these types of licensing provisions. A widespread adoption must take place, because under current copyright law, appropriation is illegal by default. This is particularly poignant when it comes to Web sources. Any blog post, video post, or graphic uploaded to the Web is automatically copyrighted to the original creator. Unless Creative Commons-style provisions are specifically offered, appropriation is against the law.
Garcelon quotes Lessig, “‘There is a vast amount of creative work spread across the internet. But as the law is currently crafted, this work is presumptively illegal. That presumption will increasingly chill creativity, as examples of extreme penalties for vague infringements continue to proliferate. (Lessig, 2004: 185)’ (Garcelon, pp. 1319-1320)”
With most Internet users possessing a propensity for appropriating and reusing content, the potential for these “vague infringements” being committed is not to be overlooked. Indeed, until a some-rights reserved copyright model is the de facto standard, the public should be educated in proper respect for copyright. This seems strictly counter-cultural since the advent of peer-to-peer sharing and the unbridled backlash by big media such as the Recording Industry Association of America. Without proper attribution and respect for fair-use doctrine, the average person will remain firmly in that darker side of the grey area when it comes to appropriation legalities.
Appropriation plays and important role in modern creative society but has been hurt by modern changes to constitutional copyright law. Organizations like Creative Commons provide a way for copyright holders to license their works for legal use by public forum. However, until this type of licensing is widely adopted, restrictive copyright laws, and the copyright holders who uphold them, will not only find themselves in a constant fight to retain their granted rights, but will stifle the creative sphere by limiting the use of their creations. One road results in a win-win situation that promises a flourishing of creative derivative works and appreciation for the original artist’s creation. The other, a backlogged litigation system that discourages new art and creative culture.
Garcelon, M. (2009). An information commons? Creative Commons and public access to cultural creations. New Media & Society, 11(8), 1307-1326.
Jefferson, T. (1813). Thomas Jefferson to Isaac McPherson. Writings 13:333-35. Retrieved March 21, 2010, from http://press-pubs.uchicago.edu/founders/documents/a188s12.html
United States Constitution. Art. I, Sec. 8.
What is CC? - Creative Commons. Some rights reserved. Retrieved March 21, 2010, from http://creativecommons.org/about/what-is-cc