An interview with Jimmy Cauty

From Rocknerd, the KLF's James Cauty:

IP laws were invented by lawyers not artists.

* * *
I'd like to see the total collapse of the music, TV and film industry, I noticed Metallica got upset about the Napster thing. Their argument is that they should get a royalty every time someone downloads a track. Isn't that like the plumber getting royalties whenever you turn on the tap? I think if I was in a band I’d tell the record company to fuck off and release it all free on the internet. Just forget about trying to make money and just concentrate on the music.

Everybody's a mixed bag, but who gets the money?

"'Walter Boudreau is frustrated by the attempts of cultural institutions, such as the Académie Française, to keep language, art, music, whatever, pure. 'How foolish. We're all impure. Everybody's a mixed bag. Everything is in constant transformation.'"

Lloyd Whitesell "chose to pose more questions. Who owns music? Do people borrow or steal music, or is music in the public domain? Drawing on anthropologist Steven Feld's observations, Paul Simon's Graceland was a blend of rock and roll, Cajun, and South African pop, but Simon is the one who gets the money."

collage is art, not theft

From Negativeland:

[F]rom an artistic point of view, it is ponderously delusional to try to paint all these new forms of fragmentary sampling as economically motivated "theft", "piracy", or "bootlegging". We reserve these terms for the unauthorized taking of whole works and reselling them for one's own profit. Artists who routinely appropriate, on the other hand, are not attempting to profit from the marketability of their subjects at all. They are using elements, fragments, or pieces of someone else's created artifact in the creation of a new one for artistic reasons. These elements may remain identifiable, or they may be transformed to varying degrees as they are incorporated into the new creation, where there may be many other fragments all in a new context, forming a new "whole". This becomes a new "original", neither reminiscent of nor competitive with any of the many "originals" it may draw from. This is also a brief description of collage techniques which have developed throughout this century, and which are universally celebrated as artistically valid, socially aware, and conceptually stimulating to all, it seems, except perhaps those who are "borrowed" from.

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heard when it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone's music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce. These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material's avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner in their usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

Douglas Gordon on his 24 Hour Psycho

Douglas Gordon's 24 Hour Psycho:

		24 Hour Psycho The exhibition begins with 24 Hour Psycho (1993), a slowed-down version of Alfred Hitchcock's 1960 film Psycho. A different take on a familiar classic, it introduces many of the important themes in Gordon's work: recognition and repetition, time and memory, complicity and duplicity, authorship and authenticity, darkness and light.
		Douglas Gordon in his own words: "24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation... it wasn't a straightforward case of abduction. The original work is a masterpiece in its own right, and I've always loved to watch it. ... I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me...

A little change can make a great transformation

Henry McKervey and Declan Long, in "Makers and Takers: Art and the Appropriation of Ideas:

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon's 24 Hour Psycho, for instance, there is in one sense very little of the artist's 'own' work (Hitchcock's classic thriller being merely re-played at a radically slowed-down pace) yet Gordon's intervention makes for a powerful, transformative artistic statement. The question of "knowing originality when you see it" is almost beside the point in cases such as this: artists' strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Freedom depends on the use of the past

Lawrence Lessig, from this flash presentation of his speech at the Open Source Convention 2002:

Creativity and innovation always builds on the past. The past always tries to control the creativity that builds upon it. Free societies enable the future by limiting this power of the past. Ours is less and less a free society.

How to survive zombie attacks

This movie was created initially for a challenge posed by freeculture.org. It uses clips from the film "Night of the living Dead", and "Amid the Dead". Both of these films were acquired from archive.org. This film is an amusing instructional video on how to survive a zombie epidemic.

Artistic intent, money, etc.

What were Cauty and Drummond's intentions in their "art"? Why did they abandon a successful pop music career as "The Justified Ancients of Mu Mu" ('The JAMs'), "The Timelords", "The Kopyright Liberation Front" ('The KLF'), "The Forever Ancients Liberation Loophole ('The FALL') and found the "K Foundation"? At least one point of view is that "[w]hat Cauty and Drummond were primarily concerned with was money: money as art, art as money. The possibility of meaning beyond money. To challenge the power of money. And if none of that makes sense, maybe that was the intention." That hardly seems far-fetched to me. Drummond himself, speaking of his and Cauty's plan to burn a million pounds of cash, stated that "'We had nothing better to do with the money. Even if it's not art, it's the most important statement we can make,' said Drummond. 'We needed to express something about money and we wanted to push it through art.'"

More than one person I respect was horrified at the stunt. Think of the good that money could do in building projects to bring water to villages in Kenya without access to that most basic of human needs?

K Cera Cera may not be about money, but the question of intent certainly does relate to whether that song constitutes art or theft and, more generally, to the point I raised earlier today: are we to ground our determination of whether a work is "transformative" in the "artist's" own expressed purposes? As previously noted on this blog, "[w]hether [Jeff] Koons will be seen in time as a critical commentator in the tradition of the Dadaists and a genuine leader in the controversial tradition of the avant-garde, or merely as a fashionable purveyor of meaninglessness and banality, remains to be seen."

I simply cannot fathom the Second Circuit's reliance in these determinations on the artist's expressed intent.

And yet I feel (and may well be wrong) that Koons' Niagra and the K Foundations K Cera Cera do not constitute copyright infringements. Why? Aye, there's the rub. One point, I suppose, is that neither has any conceivable impact on any commercially valuable primary or derivative markets for the copyrighted work. K Cera Cera has not and will not stop anyone from licensing the rights to cover Q Sera Sera. Pink Martini has done their own "dark" interpretation of the song, and it remains a valuable product for licensing to this day. Moreover, the KLF's K Cera Cera is so obscure and seems intended to express such an abstruse point that I can't imagine it's devalued Que Sera Sera for licensing in a commercially valuable market for music mashups. Similarly, Niagara cannot conceivably have an impact on the value of the commercial photograph it appropriated. But is it all about economics? Surely, U.S. law doesn't give the artist such control over her creation that she can keep it from being used in ways she doesn't like merely because she doesn't like them. The First Amendment seems to preclude such "morala rights." As the Second Circuit stated in Blanch v. Koons, Copyright law must in part protect the ability of authors, artists, and the rest of us to express them or ourselves by reference to the work of others. 467 F.3d at 250. Que Sera Sera is much more than a song. It is a part of our culture and the feelings and thoughts it evokes as part of our culture are far, far larger than anything created by its composers. Why in the world would we be prevented from using it as a symbol to evoke those feelings and thoughts as long as we are not diminishing the incentive of the composers to compose the song in the first place?

So is it all about the money? That would be ironic, given that the KLF and the K Foundation are the genesis of this blog's ongoing discussion. Is it about the artist's intent? I cannot make sense of that. And who, after all, are we protecting?

What spurs creation, and does copyright really protect the artist?

Joe Simon and Jack Kirby created Captain America. But then they were fired by Marvel Comics' corporate predecessor in a dispute over royalties, and Captain America remained the company's property, not theirs. Who are we protecting with copyright? And how central is it to artists' motivations to create? Of course, we live in a far more commercially minded world now:

These days creators have learned from the past by self-publishing or otherwise securing the rights to their progeny. But some of the founding fathers of American superheroes are still seeking justice. Just last month a federal judge ruled that the heirs of Jerry Siegel, a creator of Superman, were entitled to claim a share of the United States copyright of the character. Time Warner, which owns DC Comics, would retain the international rights.

“That’s great,” the bespectacled Mr. Simon said. “Jerry Siegel started it,” he added, referring to the effort by Mr. Siegel’s wife and daughter in 1997 to secure the copyright to Superman. (Under a 1976 law, heirs can recover the rights to their relatives’ creations under certain circumstances. Mr. Siegel died in 1996 without major compensation for his character.) That family’s stand inspired Mr. Simon’s own claim to Captain America in 1999.

“We always felt ‘we wuz robbed,’ as Joe Jacobs, the boxing promoter, used to say,” Mr. Simon said of his dispute over the ownership of Captain America, which he settled out of court with Marvel in 2003. He said his royalties for merchandising and licensing use of the hero now help pay his legal bills from the case.

But copyright was not on Mr. Simon’s mind when he was conceiving Captain America. He didn’t even begin with the hero. “Villains were the whole thing,” he said. And there was no better foil than Hitler. Who better to take him on than a supersoldier draped in the American flag?

Artistic intent, art interpretation, and the transformative nature of appropriation art

Are we really going to require an inquiry into an appropriation artist's purposes in determining whether the appropriation is "transformative"? As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist's own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists' work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh's in painting The Irises? Haven't we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the Second Circuit, in holding that Jeff Koons' appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons' use of the photograph was "transformative" precisely on Koons' statements regarding what he intended:

Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply different objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly different from the [*253] original purpose for which they were created"); see also 17 U.S.C. § 107(1) (first fair-use factor is the "purpose and character of the use" (emphasis added)).

Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media.Castle Rock Entm't, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as "raw material," Castle Rock Entm't, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters "as historical artifacts" in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when "the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting" on the original). His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

The test for whether "Niagara's" use of "Silk Sandals" is "transformative," then, is whether it "merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons's adaptation of "Silk Sandals": the use of a fashion photograph created for publication in a glossy American "lifestyles" magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects' details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

Our news outlets more and more consider themselves no different than entertainment outlets, even when reporting news

From today's New York Times:

Maybe Barack Obama and Hillary Rodham Clinton can sum up their policy differences in 30 seconds or less on Wednesday night.

They will have to if they are going to get their points across well on networks other than ABC, which is sponsoring the hotly anticipated Democratic debate that evening. According to the usage guidelines circulated by ABC, other news organizations are only allowed to excerpt half a minute from the broadcast.

That means choosing only one 30-second clip to use on television and the Web between 11 p.m. Wednesday and 5 a.m. Thursday.

ABC defends the restrictions as being “very reasonable.” After all, ABC is footing the bill to stage the debate at the National Constitution Center in Philadelphia.

* * *

[T]he cable news channels may make it their business to skirt ABC’s rules. Fox News, CNN and MSNBC can be expected to use “fair use” justifications to show more clips from the debate, especially if the two candidates have a newsworthy exchange.

Does a "Harry Potter Encyclopedia" violate J.K. Rowling's copyright?

From CNN.com:

A smiling J.K. Rowling stepped out of a car and strode into a lower Manhattan courthouse early Monday for the start of her lawsuit against a publisher.

J.K Rowling is unhappy that a version of a popular Harry Potter Web site may come out in book form.

Rowling, who wore a gray pinstriped jacket and a gray knee-length skirt, didn't speak as she entered the courthouse where she was to testify around midday.

She says her copyrights are being violated by a fan who plans to publish a "Harry Potter" encyclopedia.

The showdown between Rowling and Steven Vander Ark is scheduled to last most of the week in U.S. District Court. She'll spend her breaks in the seclusion of a jury room -- away from any die-hard Potter fans.

Rowling brought the lawsuit last year against Vander Ark's publisher, RDR Books, to stop publication of the "Harry Potter Lexicon."

On its face, the distinction between defendant's fair use defense in this case is difficult to distinguish from that advanced in Castle Rock Entertainment Group v. Carol Publishing, Inc., in which the 2d Circuit Court of Appeals held that the compilation of a trivia book basead on the characters and events of the Seinfeld television series did not constitute fair use.

Is Avril Lavigne a plagiarist or merely a speaker of the single human language?

From MSN's MUSICFIX:

In July 2007 punk princess Avril Lavigne found herself in a storm of controversy when '70s power pop band The Rubinoos claimed Lavigne's 'Girlfriend' stole from their song 'I Wanna Be Your Boyfriend'. Across the Internet, amateur musicologists listened to the songs and made their judgements about the validity of the accusation, with opinions varying wildly on the subject.

Avril countered the accusation by saying she'd never heard of the Rubinoos. This is almost certainly true, as we are talking about the same woman who in 2003 mispronounced the name of rock icon David Bowie when announcing Grammy nominees. If she can't get Bowie's name right then it's fair to assume she's unlikely to know the band that did the theme song to Revenge of the Nerds.

What was all the fuss about?

For the Lavigne-loving public these accusations were an unwarranted outrage, and an unfair dismissal of her talents. For those in the anti-Avril camp the claims supported their position that Lavigne was more pop tart than punk princess.

In her defence Avril pointed out both songs are essentially similar to the Rolling Stones 'Get off my Cloud' and the Ramones 'I Want to be your Boyfriend.' So if anyone should be angry it should be Sir Mick. Luckily for Lavigne he's too busy being a rich old rock star to care. Besides, according to Avril, the ''Sid Vicious for a new generation'', "All songs share similar lyrics and emotions. As humans we speak one language."

What were the consequences?

Unfortunately for Avril, over the next few weeks more accusations surfaced, with a former writing partner first claiming, then retracting another plagiarism claim. To add to the grief people also noticed similarities between her song 'I Don't Have to Try' and the Peaches tune 'I'm the Kinda.'

Perhaps Lavigne's greatest defence against claims of stealing a '70s rock song is her well-documented ignorance of pretty much any music released before 1995. She once said, "People are like, 'Well, she doesn't know the Sex Pistols.' Why would I know that stuff? Look how young I am. That stuff's old, right?"

The true history of copyright

One important argument to consider is that free speech depends on the public domain, that it requires the free exchange of ideas, and that those ideas are not the creations of geniuses who pull them with the help of divine inspiration out of their very souls for the good of the rest of mankind but, rather, that they are merely "discovered" by their "authors" within the collective culture we and all our ancestors have created. Thus, in the 18th Century

intellectuals had argued that the enlightenment was grounded on the free exchange of ideas — ideas that belonged to the world and not to the individuals who discovered them. This was a view eloquently expressed in 1776 by the marquis de Condorcet. Individuals could not own ideas as they did property, he argued. "There can be no relationship between property in ideas and that in a field, which can serve only one man. [Literary property] is not a property derived from the natural order ... It is not a true right, it is a privilege" [7]. As a consequence, copyright existed to protect the free exchange of ideas, not the rights of authors [8].

This view, however, was soon overwhelmed in 1788-89 by the Revolution. In the Declaration of the Rights of Man, the National Assembly officially sanctioned freedom of the press. Without effective copyright, the freedom was wild and destructive. Anonymous and seditious pamphlets appeared throughout the country; piracy of literary works was rampant; publishers faltered and became insolvent. Officials recognized the need to act, but they debated endlessly, ensnared by the politics of censorship in the midst of the Revolution’s turmoil [9].

As early as 1790, Condorcet himself cosponsored a proposal that provided copyright for the author’s life plus ten years. The proposal violated the principles Condorcet had declared just 14 years earlier, but he now had another goal in mind following the Revolution (to make authors accountable for what they wrote). His proposal did in fact place some limitations on literary property, but not surprisingly, these were widely criticized by the Paris Book Guild and the royally privileged theatre directors. Once again, they used author rights as their central argument [10]. The proposal never came to a vote.

Astonishingly, after the original sponsors departed, almost exactly the same measure was passed into law in 1793 without discussion, partially propelled by the revolutionary call to respect individual rights and property. French copyright law was a compromise: The law sanctioned the notion of literary property, yet it limited such property and created the notion of public domain. It gave something to those with corporate interests in literary property, but it also took something away. And during the nineteenth century those corporate interests worked steadily to take back whatever they had lost.

Some claim that French copyright law was born in the Revolution as droit d'auteur — author rights. But French copyright continued to change for one-hundred years following the Revolution (Ginsburg, 1990). What was initially an uneasy compromise between the philosophies of Diderot and Condorcet slowly became dominated by the notion of author and moral rights, until copyright became synonymous with droit d'auteur in France.

Would an appropriator sue someone who had appropriated his work?

In my comments to students after an oral argument on the cross motions for summary judgment on the legal writing problem that inspired this site, I suggested that the idea (advanced by counsel for the plaintiffs) that the KLF would pursue a copyright infringement action against anyone who appropriated K Cera Cera seemed pretty far-fetched. It would take too much nerve for an appropriator to sue someone for appropriation, wouldn't it? Perhaps not, at least in the case of Shepard Fairey.

I still think such a move is contrary to part of what the KLF were all about.

Then again, maybe Baxter Orr's claim that Shepard Fairey has served him with a cease and desist order is a hoax Orr cooked up to garner publicity for his own work.

When will we no longer consider it "original" to express the "insight" that much of what we label "original" and thereby protect with copyright law is just the same old pap recycled by corporate giants, not art created by divinely inspired geniuses living among us? That idea may not itself be an original one, but it does not seem to have penetrated very much into the culture at large, much less copyright law, at least not when the most successful commercial "artists" are so plainly the synthetic creations of corporate giants:

"It's an amazing thing that we've reached a place in the entertainment industry where a 15-year-old Disney firecracker could outsell 'The Boss,' that the kid who plays Harry Potter could make more money in a year than Jennifer Aniston and Sandra Bullock," said Lea Goldman, senior editor of Forbes. "Kids are where it's at today. Tweens wield mighty, mighty power in the marketplace."

Like many others in entertainment, [Miley] Cyrus is probably better known for her character's name, Hannah Montana, than her real name. However, the name "Hannah Montana" is owned by Disney, which controls all aspects of its use and pockets much of the earnings.

"Miley is unusual in that much of her earnings are under a Disney-owned brand, that of Hannah Montana," Goldman said. "This is a Disney property. That means Disney enjoys ownership of all the rights and royalties associated with the brand."

Syracuse popular culture professor Robert Thompson agrees.

"Miley Cyrus as Hannah Montana is the huge phenomenon it is, not because she's a brilliant actor or an extraordinary singer," he said. "The reason it is a phenomenon is because of the incredible industrial complex that Disney has in control. The way the concert was promoted, the handling of Hannah Montana is a phenomenon created out of a brilliant set of marketing strategies."

That's why the teen star whose full name is Destiny Hope Cyrus - Miley is a nickname - is known more as Hannah Montana. On her second music recording, a two-disc follow-up to her Hannah Montana soundtrack, Cyrus uses her full name on the second disc. Beyond that, her official Web site (mileyworld.com) and her live television appearances as herself, Cyrus is Hannah Montana to the public.

Goldman said that Disney is well aware that Hannah Montana would not exist without Cyrus, "and she is well-compensated. But Miley wouldn't be Miley without Hannah."