I’ve heard the following expression numerous times in various contexts: “Opinions are like assholes, everyone’s got one!”. Sure, we get the point. It does not however make one’s opinion less valid or make any facts on which they are based less true. One could possibly have a misunderstanding of fact and arrive at an invalid conclusion. However, the opinion formed at the time is likely valid based on the current understanding of the facts.
My opinion expressed in this article is based on my understanding of facts, my views on current laws, how they are interpreted (to the best of my understanding) and how I feel they should be interpreted. In no way do I claim to be a lawyer and I certainly don’t offer legal advice. I just hope to offer a somewhat educated point of view that may be helpful in bringing understanding of culture and copyright into the digital age.
I’m open to constructive criticism and alternate points of view which may indeed change my opinion. I’ve been reading through Lawrence Lessig’s Free Culture again. Published in 2004, its arguments are still as relevant today if not more so. Every time I read articles on copyright my own thoughts and opinions get stirring through my head sometimes so much that I have trouble paying attention to what I’m reading. I thought maybe it was time I started to vent a little about the subject.
Culture
So, what is culture? What defines culture? Lessig’s Free Culture doesn’t seem to explicitly define what culture is but tries to create a distinction between “commercial” and “non-commercial” culture. Both of which are to be “consumed” in some manner. In my opinion however, “consumables” don’t define culture but rather culture defines what is “consumable”.
This isn’t to say consumables don’t have an influence on cultural evolution but cultural evolution is advanced by the current interests and interactions of the people in a society. I grew up in the ’80s. At least those were my teen years when culture first mattered. I was a “headbanger” defined by the length of my hair, my dress, the music I consumed, mostly influenced by my peers who they (and myself) were influenced by the music we consumed.
The music didn’t define the culture but it certainly had an influence. We would model our own style after our favorite musicians, we listened to the music our friends liked (and parents hated). But that didn’t define culture. We also smoked if our friends smoked, worked on muscle cars, had teenage keggers in the woods, snuck into drive-ins (yes, there were drive-ins), did stupid stunts to try to pick up girls. These were the things that defined our culture. Consumable media, while it had an influence, played only a very small part.
Lessig describes the non-commercial culture as “When old men sat around parks or on street corners telling stories that kids and others consumed”. I really think it is important to note that culture is not “the stories that were consumed” or the “consumption” of stories but rather the socialization of the people involved in a common activity and sharing it with each other.
The story or content is not what defines the culture but merely has the potential to influence. Culture is created all the same if the people are in the park playing baseball or watching/performing magic tricks. I’m not trying to say Lessig is wrong about anything. Like I have the qualifications to even approach being able to do something like that! Lessig is pointing out the precipice on which we are standing where big media is trying hard to control how content is consumed, to control how content is assimilated into culture (while maximizing profits), and the potential impact such control will have on future creativity. I’m just trying to make clear the difference between culture and the consumable content which influences it.
Content
Content I think of as the substance of culture. It is the creative expression that is shared with others. In fact content could not exist without the sharing of culture. I say this from experience where as an aspiring musician I’ve tried to create my own music. I quickly learned I have no artistic talent in my body so my content never left the privacy of my own bedroom. Content is created by the artist first and foremost out of a passion for the art.
Content is influenced by the culture in which the artist exists. It is combined with the artist’s own personality and creativity. It is then consumed as an influence to the next steps in the cultural evolution.
I’m not saying artists need not be compensated for their creativity. Indeed, they could not survive easily without some compensation. Musicians still to this day make a living performing, artists make a living selling in galleries, authors make a living publishing. All are assimilated into culture. Culture is an audience to the musician, it is the patrons to the museum, it is the ambiance brought into a room through a painting, it is the imagination sparked by the words of an author.
Content begets content. While there most certainly are new original works you would be hard pressed to find any that were not influenced in some way by past works. Content evolves (or rather in the past evolved) along side culture. However, with current laws and how they are being changed and influenced by big media, content will never again evolve in the ways of the past.
I think my favorite example of content and cultural evolution is the story of Santa Claus. Santa’s roots can be traced back to Dutch and Scandinavian folklore combined with similar tales from other cultures. I’m not planning to do a full write-up on Santa’s origins however, Wikipedia gives a great background history.
The point I want to make with this is that this content evolved with culture and culture evolved along side this content. Many artists influenced by stories of Santa, or Saint Nickolas, or Father Christmas, or Sinterklaas built on those stories, producing paintings and poems, music and stories which in turn influenced the further evolution of Santa. Current copyright laws (and the perpetual extension of those laws) prevent Mickey Mouse from evolving into anything other than a squeaky mouse.
Copyright
Big media companies, encourage us at a very young age to take their content, build on it and act out new and exciting stories based on their characters? I was 6 years old when I saw Star Wars for the first time in the theater. I had action figures and ships and play sets from the movie, saw the advertisements on TV that showed other kids, just like me, playing with the Star Wars merchandise making up new stories.
What I didn’t realize then, is that no matter how good or original the story was, or how imaginative it may have been, I could not legally write it down, film it and otherwise publish it for others to share. To be fair, I’m certain that it was never the intent of the media producers to have children all over the world become competitive content producers using their own characters and back story against them.
However, it does demonstrate how content and creativity evolve from existing content. It shows how you do not have to have completely original work to be creative. It shows an understanding, if somewhat subconscious of the original content producers, that creativity and imagination can be built upon past work.
The content creators encourage children to build on their content. I presume they are OK with this because the “right” to imagine is sold to the children through the purchase of the action figures and play sets.
But how far are the children allowed to go with this right to creativity? My brother and I could play with our action figures and make up our stories. I could invite my friends over to play with my action figures. (Should they have purchased their own action figures? Was this illegal?) My parents could watch us play with our action figures.
However, was this performance of our made up story permitted? Were we allowed to perform for an audience? What if we invited our neighbors over and put on a sort of “puppet show” with our action figures. Were we still allowed to perform our story that was based on Star Wars? What if our performance was filmed and posted to YouTube? (I know, YouTube didn’t exist in 1979. But that’s the point of this article.) Where is the line drawn?1
As kids we were never informed that there was potentially even such a line. We were happy making up stories and big media was happy collecting our money. I know these questions really sound absurd, however, now that the Internet is a way of life and content is available like never before, it is so easy to mix and remix content and have it seen by so many people. Why haven’t these seemingly absurd questions ever been asked before? Why are we encouraged to mix and remix content as children only to be told it is dirty and evil now?
1 (Update 2020-09-05) In the nine years since I first wrote this article, YouTube is filled with kid videos playing with action figures, playing in costume, etc… For the most part these seem to be left alone by content creators. (As they should be.) However, none of these activities have been legally challenged and definitively considered covered under Fair Use. For instance, kids playing will likely not worry the Big Media company. However, as production quality increases (think fan films) the content starts to become a concern for the copyright holder.