May 8, 2004

Copyright and Postmodernism

Donna Wentworth has some great comments on Edward Rothstein’s review of Siva Vaidhyanathan’s new book. She points out that though Rothstein accuses Siva of romanticism, it is he who is the Romantic, holding fast to the 19th-century notion of the author-god, from whom cultural works spring forth fully formed. In Rothstein’s Romantic view, the best art is not beholden to any previous cultural text, and exists entirely as its own entity.

No text is derived entirely from its author; there are always traces of other works, conscious and subsconscious allusions, references, quotations, comparisons, comments. To quote Barthes, “No doubt it has always been that way.” Rothstein writes of “the hard-won solitary labors of the artist who doesn’t pirate or sample,” but no such artist exists or has ever existed. The question is one of degree, not of kind. Artists exist within cultures, and cultures provide the materials from which artists create art. Language, imagery, harmony, sound, intonation, perspective, and so on are provided by the culture. Even the artist striking out on a new path is viewed in relation to existing culture, and the viewer cannot help but interpolate existing works into their interpretation of a new work.

Interpolation of existing culture into new works — either by reference or by quotation — is inevitable. It is nothing more than historical accident that some of this interpolation is legal and some of it is illegal. The lines of copyright law are not drawn categorically between “copying” and “not-copying”; they are drawn between expressions and ideas, between derivative works and transformative works, between duplication and explication.

Copyright law separates socially useful copying from socially harmful copying. The lines drawn by current law do not recognize the way the line between “good” copying and “bad” copying has moved over the past fifty years. But make no mistake — the line has moved, and the law must change.

Once upon a time, the idea / expression dichotomy had meaning. Almost any social or cultural criticism you cared to make could be made without substantial verbatim copying of the work criticized, since the works to be criticized were almost invariably written, and written texts are susceptible to paraphrasing. But just as wearing “I Strongly Oppose The Draft” on your jacket doesn’t have the same punch, neither does paraphrasing the idea of a musical recording or a TV show or a movie. There is simply no legal way to say, for instance, what DJ Danger Mouse says in The Grey Album. It can’t be done by literary allusion or by reference or by brief scholarly quotation. The only way to say what he wants to say is to seize the work whole, cut it up into a thousand pieces, and recombine it with other cultural texts to make something new.

In a media-mediated world, then, the only truly effective way to comment is to copy.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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