Copyright Crazy Talk

Madison, Wisconsin’s Isthmus features a story this week about Zooniversity, the hip-hop brainchild of two University of Wisconsin students. The duo made headlines with The Coastie Song and, most recently, the national sensation Teach Me How To Bucky. 

As a copyright lawyer, statements like these trigger my attention:

It's about two UW students who are redefining what it means to be musicians in the digital age, and what it takes to win a mass audience in the post-record-industry era.

Zooniversity are blazing the trail of a new kind of artist: the social network musician. Social network musicians remix what's already been published to make it more relevant to their target market, their followers.

American youth have long navigated commercial culture. But in the digital age, it's a culture that can be downloaded to a hard drive, and, more important, it can be edited.

Most people reading the article probably thought, “Cool.”

I read the article and thought, “Damn. These guys are a lawsuit waiting to happen.”

My next thought, (frightened at how boring I must sound to others): “Seriously? Did you just say that??”

I love what I do, but I’m tired of telling wonderfully creative people how and why their art is likely to land them in court. 

So I read the article again, with different eyes. This time I stopped looking for problems and started thinking about solutions. 

I don’t know and have never met the Zooniversity guys. So I can’t speak for them. But during that second read I imagined a conversation in which I methodically explained to them such arcane points of law as, for example, the fact that parody doesn’t automatically qualify as fair use; that there’s a difference between a musical work and a sound recording; and that although it might sometimes be OK to sample a musical work, it’s never OK to sample a sound recording without a license. In this imagined conversation they politely nodded their heads, we shook hands, and they went back to doing what they do. Soon thereafter, it hit me: they don’t care.

Of course, I’m not passing judgment on the Zooniversity guys. (I don’t know them, remember?) What I’m suggesting is that what Isthmus calls this “new kind of artist: the social network musician” is refusing to play by antiquated rules. OK, fair enough. That’s how change happens. So how can we be proactive and think about new rules that might work for everybody?

In response to what you’re probably now thinking: Yeah, I know. But then one day they did actually fly to the moon….

Let’s start with what we have; identify some mutual objectives; and then let ourselves be free and creative enough to throw out crazy ideas. (Oh, and don’t tell the academics we’re doing this. They are such downers.)

What we have is the US Constitution. It’s what allows us to make copyright laws and it tells us why we have copyright in the first place. Please, let’s not mess with this. Changing the Constitution is a dangerous proposition, especially today. So let’s agree: we’re just going to keep the Constitution the way it is.

Our mutual objectives are basically (surprise!) what the Constitution tells us anyway. We want a rich public domain of materials that everyone can use and enjoy. We also want the creators of such materials to be able to make a living. It’s that simple. Anyone disagree? 

OK. So now let’s talk crazy. Is it crazy to ignore present corporate and political realities? Of course.  But let’s do it anyway. Putting that crap aside, what kind of system would fit within our Constitutional framework and achieve our mutual objectives? The current system provides for automatic copyright that lasts for the life of the author plus 70 years; has a fair use doctrine; and offers statutory exceptions that permit unlicensed use of copyrighted material under certain circumstances. It’s not a terrible way of respecting the balance between the rights of authors and the rights of the public.

But it doesn’t work for people like the Zooniversity guys whose art depends on being able to re-work the creations of others.

The problem might be that the current system, by default, applies to everyone. Is it crazy to think about the system applying differently to different classes of authors? Yes. But let’s do it anyway. Suppose authors had this choice: a.) do nothing and have the default system apply to them; or b.) opt out of the system’s protections for their work and, in exchange, have unfettered access to the work of others who have also opted out. Creative Commons is a step in this direction, but I'm talking about something on a larger scale that doesn’t involve any kind of licensing (which Creative Commons, like it or not, still does.) 

So I’m just curious. Put away all the practical, academic arguments and pretend nobody’s looking.

If it were you, which option would you choose?


Copyright 2011 Elizabeth T Russell. Blog content not legal advice.