I Read A Book: Cutting Across Media: Appropriation Art, Interventionist Collage, and Copyright Law

Cutting Across Media: Appropriation Art, Interventionist Collage, and Copyright Law, edited by Kembrew McLeod & Rudolph Kuenzli, is a variety of essays (including photo essays) collected from the conference, Collage as Cultural Practice. Unlike many of the other books regarding copyright’s influence on art, these essays focus on the experience of artists, including rappers, musicians, visual artists, and filmmakers.

Negativland explains the role law has played for many artists:

“For artists, copyright means that other art is emphatically not allowed to be seen as part of their landscape, not part of their usable environment, not allowed to be part of something that influences their creative minds, unless they are rich enough to “buy” whatever they want to use. … This withdrawal of all copyrighted art from any future recycling goes directly against the universal and historical prerogative of artists (and consumers) to see the entire world around them as grist for their mill.”

This book is highly recommended for artists and those who want to understand collage/appropriative techniques in art, but that isn’t to say there isn’t anything for academics. This book includes some entertaining footnotes, similar to Erik Jensen’s Shortest Law Review in History (Considering it is only one sentence, would quoting the article be acceptable under the proposed Georgia State copyright settlement) and my all-time favorite footnote regarding H.R. from Copyrights and Copywrongs. One essay is basically a series of footnotes, questioning the concepts of copyright, appropriation, and citation:

Citation buries the truth that we all borrow ideas behind the lie that somewhere there is an individual point of origin, of authorship, of ownership. Steal creatively, and profligately, and stand with chutzpah on the intellectual booty of our collective history! …Let this note be the last note, ever. [It isn’t even the last footnote in this non-essay!]

This book also reminded me of the far reaching influence of the alternative press magazine, Stay Free! The book includes two interviews — of Siva Vaidhyanathan and Chuck D — reprinted from Stay Free, but also the Illegal Art exhibit. Carrie McLaren’s work in creating a space for these issues to be discussed and displayed by creatives is sorely missed, but bills need to be paid!

————————

In a somewhat related note: Duke University Press, what is with your copyright statements about books on your website? This is at least the third book with a Creative Commons license within the physical copy of the book, but there is nary a mention on the official page of the book (click on rights). Instead, there are directions to contact the Copyright Clearance Center (!) and your permissions department.

What is the point of Creative Commons licensure if you don’t even mention it? And you (Duke University Press) do not own the copyright for either the compilation as a whole (the editors) or the individual chapters (mostly the chapter authors), so your misdirection doesn’t have a clear intent. Or is this copyright statement page the default for all Duke University Press books? If so, then please add in the possibility that either entire works or sections could have Creative Commons licenses!

Advertisements

Transformative Reinterpretation or Total Rip-off?: Namie Amuro and Copy That

At what point is copying

  • homage (as a way of honoring and being respectful of the original)  even through direct copying?
  • transformative (in the traditional copyright sense) as building upon the original to create new meaning?
  • or copying as a means of economically exploiting copyrighted works?

This first post in a series about the difficulties in making this distinction focuses on three different examples of how difficult it is to carefully draw these lines, focusing on Japanese pop star Namie Amuro’s Copy That (official Vidal Sassoon music video-ish commercial above), and later posts will focus on Glee’s Madonna and Lady Gaga episodes, and Christina Aguilera’s Not Myself Tonight video (and dance responses), and other similar situations.

Continue reading

Commercial versus Non Commercial use?

Creative Commons licenced work by dbking

Creative Commons licenced work by dbking

Due to the difficult line determining what is commercial and non-commercial use of copyrighted materials, Creative Commons has recently completed a study regarding this issue — with surveys of both content creators and users (PDF full report here). This study has lots of interesting  information for the fan-creative-remix community.

The study’s findings include that

Many group participants noted that there are promotional and thus potentially economic or commercial advantages to creators in connection with releasing content freely for noncommercial use. For these creators, “credit” for permitting noncommercial use is very important, and the question of attribution is something that gets factored into their consideration of when a use is acceptable. … As a practical matter, many seem to consider noncommercial use as having minimal or indirect commercial impact, rather than absolutely no commercial impact.

What about users?

As do creators, users often approach the question of noncommercial use on a case-by-case basis. Paralleling many creators’ approach to deciding when to allow or license a noncommercial use, many users also explained they use content guided by their own principles or personal rules of thumb, or in accord with practices followed by other users, which they hope creators are more likely to accept, on a “safety in numbers” theory. Verbatim examples of how some users articulate their understanding of when a use is noncommercial include:
· “if it’s for education or personal use”
· “if it does not compete – noncommercial is really non-compete”
· “if the creator is getting promotional value”

Jessica Litman in Lawful Personal Use suggests that personal uses of copyright works arguably *is* outside of copyright protection.

So how does the study respond? It alows for leaning towards that direction:

users are much more likely than creators to rate personal or private uses as noncommercial, and there is strong consensus among users on this point. Thus this particular use scenario, at least as rated by users, stands out from all the others as being the most ‘definitively’ noncommercial …. Creators also agree that personal or private uses are the least commercial of all scenarios measured, but it is striking to have this one instance in which users believe the use is even less commercial than creators.

Will the Hallyu Wave Reach the U.S.?: Music: Part One

Based on the popularity of our earlier post on the hallyu wave, we plan on writing more about Korean culture. We are starting with music — specifically pop and rock. This first post will mention some of the issues with Asian music in the U.S. but we will follow with separate posts discussing pop and rock.

So as a reader, you likely noticed a shift within the first paragraph — from Korean-produced culture to Asian culture. This is not by accident; while there are many real differences between the cultures of Asia, they are often perceived of as a monolith in Western eyes.

The perception of Asia as an exotic monoculture helps explain that the elements of Asian popular culture that make their way into American culture are generally subcultural and often nerdy/geeky (kung fu; anime; manga/manwha).

So what about music — the universal language? Most of the Asian (or Asian-American) musicians that are known in the U.S. are classical musicians – not involved in pop or rock. Of course, there are exceptions, but they are limited. Why?

Frederick Stiehl in Asia Pacific Arts states that

America has known few foreign artists outside of Latin America or Britain. Indeed, America has proven itself to be quite resistant to foreign singers, and especially to non-English artists. A few exceptions include Icelandic Bjork and German Rammstein …. However, both of these artists demonstrate a specialized style, known to but not followed by “mainstream” Americans.

But there are also issues with Asian-American musicians finding success in the U.S.

While not necessarily accusing American culture of discrimination, it is important to note the limited number of Asian Americans in the mainstream music industry, for whom neither English nor lack of knowledge of the culture should be a problem.

So in our upcoming posts, we will be exploring whether the Wonder Girls will make in the U..S. and why Boris is pigeonholed as Japanese rock!

Operation Hot News, or Making the News Friends-Only

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

"My training tells me... that this is going to be a hot mess." (screenshot from Arrested Development from the-op.com)

The newspaper industry is having severe problems, but is changing copyright law the way to fix things?

Richard Posner, highly regarded intellectual property scholar and Federal judge, suggested a drastic change recently:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

But while many others have discussed this proposal, a culturally valued way of solving the issue may be available — if the problem in search of a solution is indeed the problem of free riders through aggregation: Citation! and more generally, Attribution!

Presently, in U.S. copyright law, those who reuse copyrighted (and public domain) materials have no responsibility to attribute the works to the author. However, in countries that include moral rights as part of the intellectual property right, attribution is required. And even Creative Commons, which once had attribution as an option, now includes attribution in all of its licenses.

Traditionally, journalists have not always cited back to the original source, so this would require a change in style guides and editorial standards. But if what needs to be curtailed is “free riding” — then ownership over the news isn’t going to solve the issue.

But what about the “hot news” doctrine? Based on this doctrine, AP News recently settled a case with an online news aggregator (for law-talking people, the motion to dismiss decision is found at AP v. All Headline News Corp., 608 F. Supp. 2d 454 (S.D. N.Y. 2009). So should everyone that quotes news be concerned that the news is now locked away? This misappropriation claim is state-specific. For example, in New York, this claim only applies where all five  factors exist:

  • information is generated or gathered at a cost
  • the information is time-sensitive
  • the use of the information by someone else constitutes free-riding on the generator/gatherers’ efforts
  • the user of the already gathered information is in direct competition with a product or service offered by the gatherer
  • the ability of other parties to free-ride on the efforts of the gatherer or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (quoted/paraphrased from NBA v. Motorola, 105 F.3d 841 (Second Circuit, 1997)

Changing the standard towards more citation and attribution will help the public understand where news is coming from.

After all, if everyone needs to cite who broke the story — yet continues to be able to use the information from that story, it would allow for, hmm, news reporting, to continue. The idea that the first-on-the-scene would be able to prevent others from being able to expand, develop, or critique the news would complete the destruction of the Fourth Estate, rather than saving it!

I got my propaganda, I got revisionism: Book Review: Che’s afterlife : the legacy of an image

Is art (always) resistance?

Popular version of original photo by Korda

The paradox is to wield Che in an attack on [capitalism], its critics must participate in it. They engage in the act of consuming Che.

As Michael Casey describes in his excellent social history, Che’s afterlife : the legacy of an image, the meme of one captured moment in the life of Argentine/Cuban revolutionary Ernesto (Che) Guevara has an amazing cross-cultural resonance (pdf). According to the curator of a 2006 art exhibit of Che-based art, this is the most reproduced image in the history of photography.

Casey says that

Che is now everywhere. In its common form as a two-tone abstraction of Alberto Korda’s famous 1960 photograph, his image is simultaneously a potent symbol of resistance in the developing world, an anti-globalization banner, and a favored sales vehicle among globally engaged marketing executives.

Jim Fitzpatricks Che

Jim Fitzpatrick's Che

So how did this happen? The book details how while

the compelling events of his real life and the story of its violent end perpetuated his legacy, it took the mass replication, reproduction, and marketing of the Korda photo to years later transform him into a pop superstar of immense iconic pow

But this visual meme happened due to a confluence of influences:

Political opportunism, the publishing industry, photography, silk-screening, pop art, graphic design, computers, the Internet, copyright laws, and consumer-marketing theories have all collaborated in the maintenance of Che’s afterlife.

According to Susan Scafidi on Counterfeit Chic, the flattening of the original meaning has been flattened in a way to allow for all of these varied meanings:

The specific message of the image, however, has decreased in inverse proportion to its popularity. Viva la revolucion? Power to the people? Overthrow the capitalist pigs? Or just a dramatic, vaguely rebellious image? You decide.

The Warhol Che -- though not created by Warhol, nevertheless authenticated

The "Warhol Che" -- though not created by Warhol, nevertheless authenticated

This book has much to give to those interested in history, art, marketing, and the flow of culture, and especially appropriation art, but it also has lots of interesting gems regarding intellectual property — including moral rights. Because the author isn’t a lawyer, sometimes he doesn’t always use the correct law-talking terminology, but the description is vivid.

For example, Casey discusses the complicated issues surrounding the picture to the right. Taken from the Fitzpatrick art print of the original photo, an anonymous artist created a work that was attributed to Warhol — who then certified the work as authentically Warhol — even though it wasn’t!

But where Casey really explains the complexity of intellectual property and its relationship to culture is when he describes how the copyright and trademark of the image is now closely protected, though

During the preceding thirty-seven years of legal inaction, the image effectively roamed the world copyright free as producers of derivative art exploited it without paying fees. It functioned much like an open standard …it was a freely available template to which others could apply their inventive talents. This de facto public domain status facilitated an explosion of creative expression, as artists, satirists, and political commenters took to the image with glee. Some were faithful to the Cuban government’s socialist representations of Che; others not. Neither group had to worry about lawsuits.

The present situation of public domain versus ownership of the image is complicated by differing international standards concerning the copyright (Cuba had rejected copyright in 1967), trademark, and moral rights. Casey expands on how the IP-protected version of  “Che” competes with the publics version of Che — and how difficult it is to undo the public ownership idea of this image.

And according Ben Ehrenreich in the L.A. Times, Che continues to influence us, claiming that Fairey Obama poster is based on the famous Che imagery:

Fairey’s Obama is not wearing a beret, and he’s looking left instead of right, but his face tilts at the same angle as Che’s. His jaw is set with the same willfulness and strength, and he too is gazing recognizably upward into the future …. Obama’s eyes, though, are filled not with righteous anger but with vague and lofty hope.

So that does mean that the Hope poster is really a mashup between Che and the AP photo? It seems at least it is intended to be at least evocative of our cultural memory!

Our MIT6 Conference Presentation: The Intellectual Property of Remix Culture

After a truly great time presenting about fan culture two years ago at MIT5: Creativity, Ownership, and Collaboration in the Digital Age, we presented at the Massachusetts Institute of Technology’s Media in Transition Conference — this year entitled MIT6: Stone and papyrus, storage and transition (MiT 6). While our conference summary is forthcoming, here is our presentation (originally entitled: The Intellectual Property of User-generated Content), though the full paper will be on the conference website:

Generators of remix culture create communities and content, making the intellectual property of others more valuable, but receive no compensation for their work that increases the value of another’s property, and receive little to no rights in what they have created or added. Our presentation focuses on a particular sub-set of user-generated content: derivative/ transformative works of creativity – such as music videos (or vidding), fan-fiction, fan-zines and websites – though it could be applied to any situation where there is tension between a corporate content owner and its audience about ownership of the “brand” usually due to concerns of degrading market value or anti-piracy.

Pwnage

So what do we mean when we talk about intellectual property? To greatly simplify, we are focusing on copyright and trademark. In the U.S, copyright attaches to works immediately, once a creative, intellectual, scientific, or artistic works is fixed in a tangible form — and exists for life of the creator plus 70 years. The right to create derivative works is given to the creators — but there is fair use that allows others to use copyrighted works. Trademarks are the “branding” imagery plus auxiliary content (Apple brand computers, Apple brand music providing network (iTunes), Apple brand symbol, etc.) — and require registration, can be kept forever, yet need to be protected to be kept. An additional complicating factor are licenses — either for use of specific intellectual property or for use of a platform, such as YouTube.

Henry Jenkins writes in Convergence Culture that

“American intellectual property law has been rewritten to reflect the demands of mass media producers–away from providing economic incentives for individual artists and toward protecting the enormous economic investments made in branded entertainment”

MONEY! MONEY!

Those who are part of participatory culture are often not seeking compensation in traditional ways, yet are not just doing it for the LOLs. Viviana Zelizer discusses the social meaning of money in her same titled book:

“Money [according to some theorists] destroys, necessarily replacing personal bonds with calculative instrumental ties, corrupting cultural meanings with materialistic concerns…. Observers of commercialization in Western countries have thought they saw devastating consequences of money’s irresistible spread: the inexorable homogenation and flattening of social ties.

Money may not be what fans are seeking — instead recognition, credit, etc — but what are likely at the bare minimum to be seeking the ability to continue to participate. And continue to strengthening social ties in multiple ways — to each other, to the work, and to creators/owners.

LESSIG! (done in Khan style)

Laurence Lessig’s recent book, Remix: Making Art and Commerce Thrive in the Hybrid Economy discusses our present situation, includes a lengthy discussion of the economics of two types of culture — commercial and sharing.

A commercial economy [is centered on] money or “price” [as] a central term of the ordinary, or normal exchange.

Of all the possible terms for exchange within a sharing economy, the single term that isn’t appropriate is money.

But Lessig discusses a combination between the commercial economy and the sharing economy — the hybrid economy:

The hybrid is either a commercial entity that aims to leverage value from a sharing economy, or it is a sharing economy that builds a commercial entity to better support its sharing aims.

If those within the sharing economy begin to think of themselves as tools of a commercial economy, they will be less willing to play. If those within a commercial economy begin to think of it as a sharing economy, that may reduce their focus on economic reward.

Much of Lessig’s discussion about hybrid economies is applicable to fan culture and other examples of participatory culture and user-generated content. Therefore, our presentation is about both the successes and failures of hybrid economies and about how in order to get something of value, some measure of control over property needs to be loosened. Commodifying the value added by user-generated content varies greatly depending on who or what is determining the value. culture.

Tiziana Terranova also discusses the role of moral economy that discusses “free labor” found in fan participation:

“Free labor is the moment where this knowledgeable consumption of culture is translated into productive activities that are pleasurably embraced and at the same time often shamelessly exploited….The fruit of collective cultural labor has been not simply appropriated, but voluntarily channeled and controversially structured within capitalist business practices.

Firefly/Serenity (we have this section blogged here)

Harry Potter (we have a longer version of this section here)

Recently, J.K. Rowling won a case preventing the print publication of the Lexicon, a non-licensed encyclopedia of the Harry Potter universe. While barely mentioned during the trial, this case is not just about one book, but concerns the entire Harry Potter fan community.

The Lexicon was created as a online encyclopedia with a large number of fans helping to make the entries accurate. When Vander Ark signed his book deal, completely ignored were the countless fans that contributed and made the website a success. So the lawsuit was fight between the author and the compiler/host of a fan-created work. Yet the fans who have contributed to the Lexicon get neither money nor recognition of their contribution.

The longest mention of fans during the trial was by the publisher:

Q… if you win this case, out of the money that you receive, you don’t plan to give any of it to fans who submitted their work, their time, to submitting information from Ms. Rowling’s book to Mr. Vander Ark’s website, is that right?

Q. You’re going to give back money to the fans, is that what you’re saying?
A. If the book is successful, there’s a lot of possibilities.

Later, the judge said that the issue of fan payment/contribution was irrelevant:

Whether or not the fans contributed … is a side issue.

J.K. Rowling has always been supportive of the fan community surrounding her works, interceding on behalf of fanworks (she is however against fanworks that use underage characters in illegal physical situations). This case has led to a rift in the Harry Potter fan community, with the Leaky Cauldron (the most popular Harry Potter news-site/message-board) cutting all ties to the Lexicon.

A recent New York Times article, Public Provides Giggles; Bloggers Get the Book Deal, discusses how user input to websites, such as I Can Has Cheezburger? (book sold over 100,000 copies), has led to website owners receiving compensation while those that created value receive nothing:

the latest frenzy is over books that take the lazy, Tom Sawyer approach to authorship. The creators come up with a goofy or witty idea, put it up on a simple platform like Twitter and Tumblr, and wait for contributors to provide all of the content. The authors put their energy into publicizing the sites and compiling the best material.

Nowhere mentioned in the article is whether contributors receive recognition or compensation.

Star Wars

Star Wars is often talked about as a positive example — after all, there is a highly active fan community and a fanfilm contest. However, at present, Lucasfilm only allows for and takes control over certain types of fanworks — and zealously goes after those that do not fit their standards, even if those works arguably could be considered to be fair use.

Both Henry Jenkins in Convergence Culture (2006) and Anne Elizabeth Moore in Unmarketable: Brandalism, Copyfighting, Mocketing, and the Erosion of Integrity (2007) quote the same Lucasfilm exec, who said in the New York Times in 2002:

“We’ve been very clear all along where we draw the line. We love our fans. We want them to have fun. But if in fact somebody is using our characters to create a story unto itself, that’s not in the spirit of what we think fandom is about. Fandom is about celebrating the story the way it is.”

Moore describes the control Lucasfilm expects over the fandom as

It is an idealized brand environment that prohibits any potential negative, critical, or neutral comment.
…The Lucasfilm IP strategy, therefore, might read something like this: imitation is the sincerest, and only allowable, form of flatterry. Yet in practice, this narrow definition of fandom, while encouraging freedoms of certain speech, actively discourages others …[and] even punishes them. The strategy begins to look like a legally enforced suspension of critical engagement.”

Lessig says

A careful reading of Lucasfilm’s terms of use show that in exchange for the right to remix Lucasfilm’s creativity, the remixer has to give up all rights to what he produces. In particular, the remixer grants to Lucasfilm the “exclusive right” to the remix — including any commercial rights — for free. To any content the remixer uploads to the site, he grants to Lucasfilm a perpetual non-exclusive right, again including commercial rights and again for free.

The remixer is allowed to work, but the product of his work is not his. Put in terms appropriately (for Hollywood) over the top: The remixer becomes the sharecropper of the digital age.

Lucas is of course free, subject to “fair use,” to do whatever he wants with his creative work. The law of copyright grants him an exclusive right to “derivatives”; a remix is plainly a derivative. And it’s true that no one is forcing anyone to make a remix for free.

Nine Inch Nails (we have a shorter version of this section here)

Conversely, the band Nine Inch Nails and the musician behind it, Trent Reznor, has in recent years spearheaded novel approaches to user generated content that allows a symbiotic/collaborative relationship with fans and their work. It closely represents both the fundamental mindset of Open Source developer communities (distributed ownership) as well as adopting a model very similar to to the curious copyright culture in Japan, anmoku no ryokai, that allows derivative manga to be sold alongside their corporate-owned source. This approach won’t work for every corporate owner/creator, and it’s certainly not the only one, but it’s at least one current example of a hybrid.

NIN’s fanbase have had a traditional unusually interactive relationship with each other and with the band, serving as self-selected ambassadors and archivists for both official releases of the band and NIN fanworks:

NIN Historian: started in 2002, a fan run website that has documented memorabilia from live NIN shows from the bands inception.

NIN Remixes.com: an archive of fan-created remixes of Nine Inch Nails songs, which allows indivuals to upload their own work, and existed before Trent Reznor allowed his post – Interscope work to be distributed under a Creative Commons license. Remix.nin.com , started two years ago and exists alongside ninremixes.com, the fan run site that has existed for over 5 years. Universal Music group halted the launch of the “official” site

Year Zero ARG: As part of the Alternate Reality Game that accompanied YZ, three of the tracks were made available on flash drives ata couple of NIN shows. When the tracks were leaked on the internet, RIAA cracked down on the fans leaked tracks and remixes, even though the ARG campaign was officially condoned by Universal Music Group.

From Billboard:

“An RIAA representative confirms this, a move that boggles the minds of many. “These f*cking idiots are going after a campaign that the label signed off on,” the source says.”

Since the Creative Commons blog has already put together links:

First, there’s the critical acclaim and two Grammy nominations, which testify to the work’s strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week and hitting #1 on Billboard’s Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon’s MP3 store.

The post (mirrored on Laurence Lessig) has an explanation for this:

So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon’s MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked. The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule…

In The Economic Structure of Intellectual Property Law Posner and Landes state that

“When several artists contribute to creating an integrated expressive work, it is efficient to vest copyright in one person [or company] and who better than the initiator and coordinator of the project?”

Posner and Landes continue

… [I]f a work is offered as a substitute for another work, then it takes away sales from the copied work. If the work is offered as criticism, it may take away sales too, but not by virtue of the copying– by virtue of the criticism, which should be permitted.”

The Ghosts example is certainly an argument against that statement. Recently, NIN went a step further in extending creative control to fans by “discovering” 400GB of high definition concert video footage online and inviting fans to create their own video projects.

There’s a bit of history behind this: after learning that a home video release of the most recent tour NIN was not in the cards (long story behind that, but at least according to Reznor, it was due in part to his former record label roadblocking him), some disappointed fans took it upon themselves to organize an online community to create a fan-produced video of the last show of the tour. From fan website http://thisoneisonus.org:

On 5th May, 2008, Nine Inch Nails released their latest album, The Slip, free online, as a gift to their fans. Or as Trent put it: “This one’s on me”.

On December 13th, 2008, dozens of Nine Inch Nails fans recorded the last show in the Lights In The Sky tour at Planet Hollywood, Las Vegas:

By working together, we aim to create a DVD to document this show that will be released free online, and possibly as a not-for-profit physical release. This one, is on us. Our time. Our effort. Our present to all NIN fans.

This was all with the indirect “blessing” of Reznor, who even before the video leak, loosened up the video security at the the show, allowing fans to record their own footage. Now to be sure, artists condoning and supporting fan video isn’t entirely a new concept either: back in ‘04, the Beastie Boys gave video cameras to fans and released an entire feature concert film of fan-shot video. And long before they became Public Enemy number 1 to grassroots fan activity, Metallica released a video, Cliff ‘em All, that featured some fan-made video record during their early years. But providing what is essentially a DVD’s worth of video footage for fans to play with is notable: it’s a gesture that embraces the open source/Creative Commons approach to fan-works and fair use that presumes a kind of perceived collective ownership of property. (A court would argue whether the derivative works of remixes and fan videos belong to Reznor or the fans, but there’s cultural perception within that particular community that the footage is owned collectively the fan community at large.)

Each party receives compensation from this sharing economy: NIN gets to leverage the enthusiasm of fans, who are willing to invest time and money to serve as free marketing ambassadors for the band, while fans recieve a product to consume free-of-charge.

Conclusion

We’re at a point now where more content/owners creators depending on social media/viral and word of mouth marketing to extend their reach and fans using technology and media tools to create increasingly sophisticated derivative works that conflate the role of media producer/consumer/owner/ambassador. Now, we’re seeing those worlds bump into each other. Current copyright law and culture hasn’t yet caught up to these advances in technology and culture. Pat Aufderheide mentioned at her presentation at MIT6 about a 20th century mindset to fair use being carried over into 21st century practice, and I think that’s what we are seeing here.There’s room here for scholars and practitioners to identify these “best (and worst) practices” of this hybrid economy model to replicate and to guide policy decisions, with more companies at least exploring the possibilities of adopting an approach that allows for a safe haven for fans/brand supporters/etc. to create content that would benefits all parties, and also allow users to edcate themselves on their own rights and responsibilities as media producers in this public sphere.

Laurence Lessig says that:

“there is a deep divide between those who believe that obsessive control is the hybrid’s path to profit … It is for the privilege of getting to remix … that these new creators are told they must waive any rights of their own. They should be happy with whatever they get (especially as most of them are probably “pirates” anyway).

A decade from now, [a controlling] Vaderesque [approach to remix culture] will look as silly as the advice lawyers gave the recording industry a decade ago. New entrants, not as obsessed with total control, will generate radically more successful remix markets. The people who spend hundreds of hours creating this new work will flock to places and companies where their integrity as creators is respected. As every revolution in democratizing technologies since the beginning of time has demonstrated, victory goes to those who embrace with respect the new creators….Businesses will have to think carefully about which terms will excite the masses to work for them for free. Competition will help define these terms. But if one more lawyer protected from the market may be permitted a prediction, I suggest sharecropping will not survive long as a successful strategy for the remixer.