The Eiffel Tower, Gangam Style remixes, and the protest marches of the mid-20th Century are all pieces of culture. They represent people in a robust way—their dreams, their identity, their values, how they spend their time, how they see themselves, how they want the world to see them—, and it amazes me that those kinds of things can be represented in a photograph or 3 minute video. Entertainment media is fascinating to me because of the way it captures and represents people, and at the same time shapes them as they react to the captured representations of themselves. Whether they represent struggles, joys, triumphs or defeats (or any combination of events and the feelings that accompany them), our pieces of culture form a patchwork of symbols that tell the story of our civilization.
The law must grow in a way that allows that patchwork to continue to be stitched, even if it sometimes wants to stitch itself in ways we did not think the laws of physical space would allow. With so much of our culture digitally recorded, we can rework, remaster, remix, rewind, review, and all but redo the pieces of our culture. The process and tools of this cultural reworking become their own cultural artifact, symbolizing a culture of reflection, creative generation, and communal response.
The Legal Analysis is this: works derived from copyrighted works, if they use protected elements of the work, can be infringements. The 17th Chapter of the United States Code (a massive collection of federal laws passed by congress) addresses copyright and describes derivative works. However, a landmark 1991 Supreme Court case (Fiest v. Rural) is famous for establishing originality as the key and core precept of copyright. Recent developments in remixing and layering expose the tension between the case law and the statutory law. If remixes use copyrighted material, they can be considered derivative works. However, if remixes are original works, they are subject to their own copyrights. A 1994 Supreme Court case dealt with the creation of parody songs, and is noted for its emphasis on whether the new work is “transformative.” One question that can be posed is this: “Is a remix or mashup transformative or is it derivative?” Seeing some uses of technology to create new works as transformative rather than derivative can abate much of this discord. Generally, the two tools I think have the best potential to help resolve this tension are the Public Domain and Fair Use (which permits transformation of works). By expanding the meaning, significance, and use of these tools, the law can be made friendly to 21st century techno-culture while retaining the basic principles of copyright law.
The Social Analysis is this: When Time magazine named YOU the person of the year, they weren’t merely being pithy or lazy (benefit of the doubt being given). They were trying to capture this new era of Web 2.0, user-generated content, and remixes. They wanted to signal a shift in our culture. We are moving away from the old days of established entities determining who will be the next superstar and toward a future in which blogs and vlogs or a webseries may simply “catch on” and gather tens of thousands of subscribers with millions of views.
Yet as technology gives artistic, political, and social voice to so many new people, I worry that any kind of constructive progress is hindered by the sheer quantity of new material. If millions of people can easily and immediately tweet, blog, comment, post, text, e-mail, message, etc. a CEO, president, senator, secretary, etc., is democracy really served? If there are millions of blogs out there, and even hundreds which I might find greatly important and personally enriching, do I have much hope of finding them, much less reading all of their content? Tagging, categorizing, and searching are all useful tools, but they can only take us so far… we need something better if we are to get the most out of this Era of User Generated Content, the Digital Age, Web 2.0, YOU.
Technology and history have conspired to create a culture delighted by blurred distinctions, reflexivity, and overlap. The remix, the mashup, and other layered works are the cultural artifacts of the upcoming generations. The law must grow very carefully if it is to mete justice here, walking a delicate line between a communal culture of layered uses of ideas and a moral and economic requirement for proper respect for ownership of those ideas being layered.