Creative License Crossfire
December 18, 2006

I have often dabbled in remixing and sampling music, and the thought that I could be legally punished for an artistic expression is disturbing. Some time ago, if I sampled something off of vinyl or a CD, for example, I made every attempt possible at mangling the sound beyond recognition. I knew I could get away with it though, because the Chemical Brothers did, they built their careers off of it. Over the years, I have encountered many other artists that create derivative work of some sort which includes copying, altering and distributing every sort of intellectual property imaginable including music, films, television shows, video games, comics, and books. Seeing so much of this going on around me has given me confidence that it is ok to sample a pop song, copy a CD, or do something creative by building off of someone else's ideas. It is hard to find anyone out there who does not indulge in some sort of copyright infringement.

In this essay I would like to examine what impact derivative work is having on our culture and if, in fact, anyone is being harmed by it. I believe that the current laws that protect media content are unreasonably unpermissive and actually hinder our culture's ability to progress and adapt to developing technology. There is a shift happening towards remixed work which is glaringly evident on the internet. The message that we are getting about this is that these acts are having a negative impact on the entertainment industry, but beyond a few cases of people that are actively trying to make money off of an existing franchise, there is no clear evidence that independent artists, doing it purely for the sake of creativity, are hurting anyone. More likely, if the entertainment industry is feeling financial troubles, this problem is caused by the laws that have been instated to protect it.

	Harry Potter Fan Art

In his book Convergence Culture, Henry Jenkins explains how business and consumer relationships are changing in reaction to cross-platform entertainment. His central theory is that cultural production in America, which in the nineteenth century was happening on a grassroots level, was pushed underground by mass media, and is now starting to emerge again. For example, folk tales were created and reformed by storytellers who did not claim ownership over them, expect to be payed for their retelling, or set guidelines on how they should be used. It can be said that folk storytelling evolved into the film industry. At first the grassroots community remained creatively involved in film showings, engaging in community sing-alongs before the show, for example. But eventually the creative elements were delivered exclusively from the top down and folk culture receded into the underground.

Through the internet, the creative grassroots culture, recently hidden in the cracks, has become visible and has united en mass to deliver stories to the world. Jenkins gives the example of Harry Potter book fans and their creative fiction websites. One such individual, Heather Lawver, in her young teens, upon reading Harry Potter and the Sorcerer's Stone, created a website called The Daily Prophet, an imagined school newspaper for the fictional Hogwarts, where Harry Potter learns witchcraft. As managing editor, she has teamed up with over a hundred children to maintain the site and without any adult supervision, they write and edit weekly columns for the newspaper. Each child creates a persona, characters that do not appear in any of the books (but may be related to them) and weave themselves into the fantasy through creative writing. Many other similar websites have surfaced from all over the world. J.K. Rowling, the author, and Scholastic, her publisher, initially supported these efforts, recognizing the educational value that these sites had to young adults taking a shot at creative writing. When Warner Bros. stepped in, buying the rights to the film version in 2002, they started taking control of, or otherwise shutting down these websites. After catching wind that they were issuing cease-and-desist orders to many of her friend's sites, Heather formed an alliance called "Defense Against the Dark Arts".

"There are dark forces afoot, darker even than He-Who-Must-Not-Be-Named, because these dark forces are daring to take away something so basic, so human, that it's close to murder. They are taking away our freedom of speech, our freedom to express our thoughts, feelings, and ideas, and they are taking away the fun of a magical book." (qtd. in Jenkins 187)

After this incident reached international attention, Warner Bros. issued a public apology and made an effort to amend the situation by granting the children some rights to create derivative works. Heather believes that this was merely an effort for the studio to save their reputation and win public appeal.

Lucasfilm has had much more time to develop their interconnection with the Star Wars fan base. Since the film was released in 1975, fans have been producing derivative art work, writing fiction and shooting films based on the Star Wars universe. The most recognized fan creations are the low budget films that they have made in their backyards and basements, using the widely available costumes, figurines, plastic space ships and toy light sabres. Those who did not have the means to buy would make the props themselves, using whatever materials they could get their hands on. Now these home movies have been widely distributed, revealing decades worth of work inspired by the original films. With the internet, the hidden Star Wars fan culture became public and started to enkindle its own fire. As Lucasfilm became alert to the immense amount of fan films being produced and distributed, they had to make a decision about what stance to take. They have swayed between prohibiting, ignoring and declaring ownership of films and fan fiction. Mostly, Lucasfilm has been supporting and collaborating with this movement, understanding that the work of creative fans can be leveraged to promote the franchise.

	This fan, Shane Felux, spent $20,000 to make his own fan film called Revelations. It took three years to complete.

Because of the tools and know-how required to create these films, most of the early work was not very good, sometimes awful, but in 1997 a mockumentary fan film by Kevin Rubio called "Troops" was released on the internet, winning an award in the 2002 Official Star Wars Fan Film Awards sponsored by Lucasfilm. It was touted as one of the most pivotal works in fan film history. A parody of the TV series COPS, it features fans dressed up in the official stormtrooper armor, playing the role of patrol officers, policing the Tatooine desert and having several run-ins with vagrant Jawas and Jedis. Not only was it clever and skillfully crafted, it was one of the first times that software based tools were being utilized to create a Star Wars fan film. This has brought high production values into the hands of the producers, enabling them to create work that competed and compared with Hollywood. Fans now have nearly everything they need at their disposal and the quality of the work mostly comes down to ambition, creative decision-making and technical skills.

In 2003 AtomFilms teamed up with Lucasfilm and hosted a Star Wars fan film contest, which received over 250 submissions, the enthusiasm undoubtedly triggered by the success of Troops. Many fans saw this as an opportunity to get recognized by the industry, perhaps landing jobs at Lucasfilm, and some of them have. The contest continues and each year there are hundreds of additional postings. The site has placed very strict guidelines on what can be done in the Star Wars films, narrowing down the options to documentaries and spoofs. However, this has not stopped fans from creating and distributing films which break the rules. TheForce.net showcases many more Star Wars fan films than AtomFilms most of which are illegal, and show characters, planets, and devices only described in the Star Wars books. Lucasfilm has always kept a close eye on this website, but has never shut it down.

There is a growing understanding that prohibiting too much of this activity could alienate fans, but the film industry is trying to figure out where to draw the line. Devoted consumers are a powerful force in advertising, bu there is a strong belief that if their actions are not regulated enough, a product's marketability could be damaged.

LucasArts, George Lucas's video game development company, invited fans to co-produce content in a MMORPG game called Star Wars Galaxies. Whereas the Star Wars films were done under a veil of secrecy, LucasArts openly communicated details about elements being designed into the game and allowed fans to contribute ideas and give feedback via forums. The end result was a game that included items designed by the players. Raph Koster, Creative Director for the game has a philosophy about on-line games that players should feel an ownership of the gameworld and not be completely at the mercy of game developer decisions. He says:

"Just like it is not a good idea for a government to make radical legal changes without a period of public comment, it is often not wise for an operator of an online world to do the same" (qtd. in Jenkins 160)

	A 1980s anti-copyright infringement slogan launched by the British Phonographic Industry.

Record labels are also deciding how to protect their intellectual property. It seems that music copyright infringement has completely spun out of control with illicit filesharing distribution, which some say is having a more negative impact on CD sales each year. Though lawsuits have shut down most illegal filesharing activities, and legal downloads have become so widely accessible via iTunes, sales continue to drop, leaving industry analysts scratching their heads. Many believe filesharing has had no noticeable effect on CD sales and may even help promote it. For example, the young adults doing most of the filesharing would not buy the music they are downloading anyway, and being able to get things without paying for them introduces them to music that they otherwise would not have known about.

In March 2004, Felix Oberholzer-Gee, a Harvard Business School professor and Koleman Strumpf, a UNC economics professor released findings showing the effect of file sharing on the sale of music. It was found that file sharing is having no major effect on the industry, that only the less popular artists, selling few albums would be effected by it, and that even then, the influence would be insignificant.

In a follow-up interview with HBS Working Knowledge editor Sean Silverthorne, Felix Oberholzer-Gee talked about the strategies that the industry should take moving forward:

Suing potential customers is not exactly a standard entry in the book of good CRM. More importantly, the RIAA's [Recording Industry Association of America] legal strategy is hopeless and smacks of short-sighted panic...Those who dream of legal solutions do not recognize the truly global nature of the peer-to-peer (P2P) phenomenon. Even worse, the RIAA's legal strategy does not even seem to work here in the United States. Despite the lawsuits—the RIAA has sued about 2,000 individuals to date—file sharing is more popular than ever.

He states that the solution to this problem is in using the P2P (Person to Person) networks to promote free music in order to stimulate sales, much like the radio but not so expensive. Competition between the P2P service's promotions would also lower the cost to the labels for promoting the music.

This represents the way the industry is shifting from private to public. Rather than consumers having a one-to-one relationship with media producers, they are beginning to cooperate together in order to sort through and interact with the data. Currently the RIAA are shooting themselves in the foot and it may be some time before they understand how to use the internet as a tool for promotion. It is clear that the music industry reacts very slowly to changes and it may even be that the current generation of industry professionals are too old-school to adapt to this new trend.

Lawrence Lessig, a professor of law at Stanford Law School, believes that the internet is replacing the industries that manufactured and distributed consumer goods in the twentieth century. Corporations, threatened by this shift, are converging their power and creating laws to protect themselves at the expense of cultural progress. Ultimately, these laws are prohibiting derivative works and creating a more unhealthy, stagnant, non-productive society.

"A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture”—a culture in which creators get to create only with the permission of the powerful, or of creators from the past." (Lessig XIV)

	Lawrence Lessig

Lessig compares this to FM radio replacing AM radio, trucks replacing trains, both of which involved long intense legal battles, and that such changes are interpreted as economic vulnerability rather than a signal to start adapting. He believes in the protection of creative property but that the war against copyright infringement is masking the solution to the problem. This, he says, is bringing us too close to a world of "all rights reserved", rather than towards a healthy balance of freedom and protection.

One way he proposes dealing with this on the internet is by using a free copyright plan called Creative Commons. The first set of these licenses was introduced in December 2002 along with an RDF/XML web application that works in tandem with the licenses. This software allows content in derivative work to be linked back to its source so that the originator retains their copyright. It also acts as a search engine to find more free content. Artists can submit original work into the system while granting and retaining some of their rights. The intention is to generate more creative work for artists to legally share, remix and distribute, with the goal of preserving the balance between freedom and permission, and breaking down the distinction between producers and end users. This would create what he calls a 'remix culture', a society that is empowered to transform, refine, and build upon the work of its copyright holders.

Most creatives involved in the art of remixing have cast the legal system aside completely as the fact that their work is illegal helps to shape their role in the remix culture. Up until the early 90's a bootlegger was simply someone who created an illegal copy of a pressed record or live performance (the term 'bootleg' was given to someone who had a microphone hidden in their boot). Usually these recordings were made by devoted fans and were copies of concerts or limited production disks not commercially available. When bootlegging made the jump to digital distribution (internet) and music production software such as Protools and Acid were introduced, these fans were suddenly endowed with the ability to manipulate their mp3's, rather than just distribute them. Hip hop artists had been sampling and remixing works since the mid-70's, but the samples were always an additive ingredient on top of original vocals. Modern bootleggers, on the other hand, create music by mashing together two or more popular songs, the creative element being what songs they decide to use, and how they combine them. Bootleg culture has risen out of the need for fans of pop music to creatively contribute back to popular culture.

Putting aside any qualitative judgments, on one level or another they are all just appropriators of sound. They are all combining elements of other people's works in order to create new ones, in effect challenging the old model of authorship that presupposes that the building blocks of creativity should spill forth directly from the mind of the artist...And at a time when it has become increasingly difficult for pop music to be shocking (witness the mainstream acceptability, however grudging, of Eminem), it may be that the only way to write a transgressive pop song is to flat-out steal it from someone else. In other words, the only way left to shock is not through controversial content, but by subverting the very form and structure of the song itself. (Rojas)

Needless to say, this has created a lot of confusion and panic for record executives who want to control distribution. There has been very little success in setting up legal, collaborative interactions between the license holders and bootleg culture. Perhaps the first positive sign was David Bowie's mash-up contest in 2004, where he encouraged his fans to mix up any of his songs. He screened the entries himself and rewarded the winning artist with an licensed single and a car. The response did nothing to lessen album sales but more likely exposed more people to his work and encouraged people to buy more of his albums.
Not only is music the source material of bootleggers but more recently films are being re-edited, mashed up and shared on P2P servers. Fanedited.com showcases a large collection of unauthorized movies that fans have creatively customized or 'fixed'. "The Phantom Edit", is a re-edited version of The Phantom Manance that has received world wide critical acclaim as being superior to George Lucas's original edit. Many fans believe that by comparison it is a stronger, more focused film.

"...Materialized from out of nowhere was a good film that had been hidden inside the disappointing original one." (Kraus)

A more recent trend in the creative bootleg scene is to make fake movie trailers by combining clips from different films and mixing in new music. Some examples include The Shining as a romantic comedy, and the hilarious and clever Scary Mary, a horror version of Disney's Mary Poppins. This scene seems to be growing even faster than film re-edits, no doubt because the files are more easily accessible, not to mention the fact that they pack more creative punch per minute.

To conclude, the current trend seems to be that our culture is asking to be creatively involved beyond consumable entertainment and interactive media. Until recently media has been exclusively controlled by the producer. As our culture becomes more public, through the internet, control is getting into the hands of consumers. Media producers are scrambling in fear to protect their intellectual property, sometimes at the cost of damaging their relationship with consumers. We are at the edge of a positive development in social participation, and the entertainment industry needs to recognize the benefits and rethink their relationship with consumers. Everyone will benefit by a culture built upon creative exchange.

Works Cited:

Jenkins, Henry. Convergence Culture. New York: New York University Press, 2006

Kraus, Daniel. "The Phantom Edit." Salon.com (2001): n. pag. Online. Internet. Available: www.salon.com

Lawver, Heather. "Defense Against the Dark Arts." The Daily Prophet (2002): n. pag. Online. Internet. Available: www.dprophet.com

Lessig, Lawrence. Free Culture. New York: The Penguin Press HC, 2004

"Music's Brighter Future." The Economist (2004): n. pag. Online. Internet. Available: www.economist.com

Oberholzer, Felix and Strumpf, Koleman. "The Effect of File Sharing on Record Sales an Empirical Analysis." (2004): n. pag. Online. Internet. Available: www.unc.com

Rojas, Pete. "Bootleg Culture." Salon.com (2002): p. 2. Online. Internet. Available: www.salon.com

Silverthorne, Sean and Oberholzer, Felix. "Music Downloads: Pirates—or Customers?" Working Knowledge. (2004): n. pag. Online. Internet. Available: hbswk.hbs.edu

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