Creating Freedom and the Freedom to Create by Zohar Manor-Abel

oha ano-bel’s

he reedom to reate  reatin reedom 1

oha ano-bel’s

he reedom to reate  reatin reedom

BA (Hons) Graphic Design Central Saint Martins College of Art and Design University of the Arts London November 2005 3

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Zohar Manor-Abel 2005 5

Creativity and innovation always builds on the past. The past always tries to control the creativity that builds on it. Free societies enable the future by limiting the past. Ours is less and less a free society..1 Lawrence Lessig

he reedom to reate  reatin reedom y

oha ano-bel Freedom The power or right to act, speak, or think as one wants without hindrance or restrain. Creativity The use of the imagination or original ideas, especially in the production of an artistic work.2 7

Creativity and Innovation always builds on the pas There are two things that I’m constantly concerned about. The most important things for human kind. They make humanity prosper. They are always linked and one cannot exist and achieve itself without the other. These two things are Freedom and Creativity. It is in our nature to create. To bring ideas to life, thoughts and ideas that have never existed before. Nevertheless, I believe that most creative ideas are thought about with the inﬂuence of other creative ideas. Sometimes the new idea is a new imaginative concept, with a distant connection to the original work and sometimes the new idea is directly based on other works. In ancient Greece, Plato elaborated Socrates’ ideas, wrote them down and added his own thoughts to them. On the other hand, Aristotle, Plato’s disciple, contradicted his learning and developed his own outlook while criticizing his teacher’s doctrine. As with philosophy, the nature of the creative process in any form is to learn from the past and to build upon it. Sometime we can clearly see the inﬂuence of past works on the present in the form of derivatives, as adaptations are. The many adaptations to Shakespeare’s works are a prime example. These are written plays, known to everyone in our culture, that have something to say about life in our own era, though written in the 16th century. The works of William Shakespeare are in the public domain, they are part of our cultural heritage and anyone can use them as they like. There is no need to ask permission from the author, and there are no restrictions on the way of making derivatives from them.

Title page: Ashley Holt, Notmickey, 2002, pen, paper and photocopies. Part of the Illegal-Art.org online exhibition for works that were liable for copyright infringement. Lawrence Lessig, Free culture, O’Reilly open source conference, San Diego, CA, 24 July, 2002, www.eff. org/IP/freeculture/ 1

New Oxford American dictionary, 2nd edition, Dictionary 1.0, Apple Computers, 2005. 2

Public domain comprises the body of all creative works and other knowledge in which no person or organization has any proprietary interest. Such works and inventions are considered part of the public’s cultural heritage, and anyone can use and build upon them without restriction. In most countries, all copyrights and patents have a finite term and when it expires, the work or invention is released into public domain. Patents usually expire 20 years after they were filled. However, copyrights are more complex. Generally they are expired when the conditions, set by the copyright law of specific nation, are satisfied. Wikipedia – The Free Encyclopaedia, www.en.wikipedia. org/wiki/Public_domain 9

Anyone can make his own modifications to Shakespeare’s writings. Just take a Shakespeare book close to you and start transforming it. It comes to my mind that maybe this is another reason why people keep on adapting his texts, aside from the fact that they are “masterpieces”. We can see it in films and plays like West Side Story 3, A Midsummer Night’s Sex Comedy 4, Rosencrantz and Guildenstern Are Dead (picture shown on page 2) 5, 10 Things I Hate About You 6 , the TV series The Black Adder 7, and more obviously in films and plays that carry the same names unchanged. In music, the creation of new works is achievable with the help of other sound pieces. It is possible to remake an older piece of music, giving it a different taste, like covers to songs, or to mix a piece of music with other sources, like new remixes by DJs and producers. Producers like Moby and Fat Boy Slim and Hip-Hop artists like Public Enemy and the Beastie Boys are consistently using samples from different songs and creating their own art.

Broadway musical written by Arthur Laurents, Music by Leonard Bernstein, lyrics by Stephen Sondheim. Directed by Jerome Robbins, Winter Garden Theatre, New York, USA, 1952; Film By Jerome Robbins and Robert Wise, USA, 1961. 4

Written and directed by Woody Allen, USA, 1982. Stage play written by Tom Stoppard, UK, 1966; Film written and directed by Tom Stoppard, USA, 1990. 5

Written by Karen McCullah and Kirsten Smith, directd by Gil Junger, USA, 1999. 7

An example of the flow of versions and remixes for one sound piece is the tune Autumn Leaves. It was composed by the French composer Joseph Kosma and written by Jacques Prévert (as Les Feuilles Mortes) to be performed by Yves Montand in the film Les Portes de la Nuit 8 in 1946. In 1949 it was translated to English by Johnny Mercer and renamed as Autumn Leaves. During the years it was performed by various artists like Edith Piaf, Nat King Cole, Stan Gets, Miles Davies, Eva Cassidy, Diana Krall and many more. The duo Cold Cut made an electronic adaptation to the song in 1993, thus creating an ambient version and kicked off the Easy Listening music genre. In 2001, another duo known as Way Out West lifted a sample from Cold Cut’s version and created a dance floor hit with a melancholic twist, renaming it as The Fall. Later that year this new version was remixed by John Digweed’s Bedrock. The creation of a new piece of art which is based on another piece of art is not only a part of the music scene. As well as adapting books into films, film makers are giving credit to other directors, script writers or just a specific genre by incorporating bits and pieces from those films in their own creation. The motion picture Psycho 9 by Gus Van Sant, produced in 1998, is “a recreation of the nightmare that started it all...”, according to the film tag line, referring to Alfred Hitchcock’s original motion picture from 1960. Apart from being filmed in colour and having different casting and that the actors played slightly different, in my view it is an exact recreation of Hitchcock’s 10

Created by Richard Curtis and Rowan Atkinson, UK, 1982-1989. 8

Written by Jacques Prévert, directed by Marcel Carné, France, 1946.

Yves Montand and Nathalie Nattier in Les Portes de la Nuit.

Written by Joseph Stefano, USA, 1960Novel by Robert Bloch, USA, 1958.

Psycho, the shower scene. Left: Anne Heche in Gus Van Sant’s remake of 1998. Right: Janet Leigh in Alfred Hitchcock’s original from 1960.

original film, shot-for-shot. It almost seems that no changes have been made at all. Sometimes it is hard to see the reasoning behind the remaking of a film, as seen in the example above, but none the less, the movie was made. Additional new versions that American motion picture studios are making are stories influenced by European cinema. Films like the French Le Retour de Martin Guerre 10, turned into Sommersby,11 La Femme Nikita 12 which was remade in English as Point of No Return (titled The Assassin in some countries)13 and later produced as a television series14 which was loosely based on the original movie. The British film The Italian Job 15 from 1969 was remade into a new film carrying the same name16 in 2002, though in a very different plot while keeping the main characters and the famous Mini Cooper raids. Americanizing the films to fit Hollywood style.

Written by Jean-Claude Carriére, Daniel Vigne and Natalie Zemon Davis. Directed by Daniel Vigne, France, 1982. 11

Written by Nicholas Meyer and Sarah Kerncham. Directed by Jon Amiel, USA, 1993. 12

Written and directed by Luc Besson, France, 1990 (left image). 13

Written by Robert Getchell and Alexandra Seros. Directed by John Badham, USA, 1993 (center). La Femme Nikita, Created by Joel Surnow and Robert Cochran, Canada, 19962001 (right). 14

Written by Troy Kennedy Martin, directed by Peter Collinson, UK, 1969 16

Written by Donna and Wayne Powers. Directed by F. Gary Gray, USA, 2002. 11

Artist Mark Kostabi said he was influenced by the painter Edward Hopper among other artists.17 Maybe he was influenced, but in a series of paintings Kostabi shows how he identifies himself with Hopper. He reflects it in his own specific way, and make the viewer understand the speciality of the new paintings, though they are similar in scenario and perspectives as Hopper’s paintings.18

Interview with American artist - Mark Kostabi, March 2004, www.artquotes. net/artists/kostabiinterview.htm 18

Amichai Silberman, Identity=Identity?, Kaveret (Beehive) - journal of the department of behavioral sciences, No. 11, August 2005, Rishon Le’Zion, Israel: The College of Management.

Left: Mark Kostabi, Blue Oblivion, 1991 (oil on canvas, 60 x 64 cm) Right: Edward Hopper, Hotel Room, 1931 (oil on canvas, 152 x 166 cm)

Left: Mark Kostabi, Aesthetic Codes (Missing Pieces), 1997 (oil on canvas 46 x 61 cm) Right: Edward Hopper, Morning Sun, 1952 (oil on canvas, 71 x 102 cm)

Left: Mark Kostabi, First, Last and Security, 1988 (oil on canvas, 69 x 84 cm) Right: Edward Hopper, Conference at Night, 1949 (oil on canvas, 70 x 102 cm) 12

A distinct example for contemporary influence by previous, although modern, work is a famous Honda advert. Swiss artists Peter Fischli and David Weiss created in 1987 a kinetic energy installation which they filmed and released as Der Lauf der Dinge (The Way Things Go).19 A 30 minute film, without narration or interviews but with an ambitious construction: 100 feet of physical interactions, chemical reactions, and precisely crafted chaos.

Advertising agency Wieden+ Kennedy with the director Antoine Bardou-Jacquet at the Partizan Midi Minuit production company created a Honda advert called Cog.20 The advert, which runs for two minutes, is a chain reaction involving parts of a Honda Accord, leading to the presentation of the new model (as of 2003), under the tag line “Isn’t it nice when things just work?”

Fichli and Weiss’ ﬁlm is well known. People who are familiar with it, are certain that the Honda advert was based on the ﬁlm. Wieden+Kennedy (and Honda), have never gave the two artsits credit for the idea.21

Above: P. Fischli and D. Weiss, Der Lauf der Dinge, 1987, T&C Film AG, www. tcﬁlm.ch/lauf_txt_e.htm

Left: Wieden+Kennedy, Cog, 2002, Honda UK, www. honda.co.uk/cog/

Jeremy Phillips and Ilanah Simon, IP Kat weblog, http://ipkitten.blogspot. com/2003/07/ipkat-visitsica.html

(a) Jenson, ~1469 (b) Golden Type, 1890 (c) Centaur, 1914 (d) Adobe Jenson, 1995 (e) Ruit, ~1990 (f) Scala, 1991

The examples on the facing page22 show the development of the typeface introduced by Nicolas Jenson around 1469 (a). Jenson was a Frenchman who had a printing ﬁrm in Venice and his typefaces merged the Gothic style of France and Germany with the Italian Humanist style. This “mix” gave birth to what we know today as roman typefaces. Gerrit Noordzij, a Dutch typographer, teacher and theorist, who designed the typeface Ruit in the 1990’s (e), which is based on Jenson’s typefaces, explains that Jenson “adapted the German letters to Italian fashion (somewhat rounder, somewhat lighter), and thus created roman type”.24

Ellen Lupton, Thinking with type: a critical guide for designers, writers, editors, & students, New York: Princeton Architectural Press, 2004, pp.14-15 22

Ibid.

The adaptation sequence begins in 1890 when Jenson’s typeface was reformed by William Morris in England, as Golden Type (b). Centaur (c) was introduced by Bruce Rogers in 1914 and captured Jenson’s strokes, with less density than Morris’ dark page features. Robert Slimback, who reconceives historical typefaces for digital use, designed Adobe Jenson in 1995 (d). This typeface is less decorative than Centaur. Scala (f), designed by the Dutch typographer Martin Majoor in 1991, is a contemporary realization of the same type face, and though it has geometric serifs and rational forms, it reﬂects the calligraphic origins of the type. Many people are not aware that most fonts we are so accustomed to use today are the direct heritage of early-modern printers/publishers. These examples, and many others through history, tell the story of human culture and human creativity. We would like to think that we “bring ideas to life.” That we create “thoughts and ideas that have never existed before,” but this is not necessarily true. They have existed before but in a different form, in a different medium, or with a different concept. We are using other people’s creative thoughts and processes in order to make our own and we cannot escape it. This is how our culture have evolved and this is our cultural future too. In order to continue and create - and thus - to continue our cultural evolution, we need to have the freedom to do so, and hence, to have our freedom to use creations from the past. Today I feel that our freedom to create is being diminished.

“Modern culture... [is] a hybrid nation of explicit inﬂuences, generous borrowings, and inside references. It’s a remix culture, a layer-upon-layer construction that lets us marvel at Tarantino’s Hong Kong homages, delight in the Dean Scream, and wink at phantom edits.” Thomas Goetz, ‘Sample the future’, Wired, Issue 12.11, November 2004, New York: Conde-Nash Publications, 181-183 www.wired.com/wired/archive/12.11/sample.html

he past always tries to control the creativity that builds on i Our freedom to create goes in two ways. On one hand, there is the sovereignty of the artist over his own work. On the other hand, there is the liberty of another artist to originate a new piece while incorporating others’ creations. Of course, both artists would like to keep their own rights before and after they produce a piece. Copyright law determines what is legal to use and what is not. It keeps works safe from other people’s hands. It gives the creators the rights to most forms of use of their work. These creators are guaranteed the exclusive right to reproduce the work, distribute copies of it, perform it and display it publicly. On some occasions it is possible to obtain a license from the copyright owner in order to reproduce, distribute, perform and display the work or create a derivative work from it. The deep meaning of the law is that an artist who is about to create a new piece while using another’s creation, cannot include the material without the permission of the copyright holder. For example, an artist cannot take a story of his favourite writer and make it into a play or a film. In order to make a derivative work of any form, the artist should obtain licence to do so. However, most Western copyright laws establish the right of fair use, which is registered as “a defence to copyright infringement, [and] allows scholars, researchers, and others to use protected works for socially productive purposes”.24 In other words, the right of fair use allows me, for example, to incorporate quotes in my essay, without seeking permission of their authors. Derivative work means “an artistic creation that includes aspects of work previously created and protected”.† The United States copyright law defines that derivative work “is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work”‡

Copyright is “a form of intellectual property which secures to its holder the exclusive right to produce copies of his or her works of original expression, such as a literary work, movie, musical work or sound recording, painting, computer program, or industrial design, for a deﬁned, yet extendable, period of time.” Wikipedia – the free encyclopedia, www.en.wikipedia. org/wiki/copyright

Fair use is hard to quantify and the main factors to be considered shall include the purpose and character of the use, the nature of the copyright work being borrowed from, the amount and importance of the portion used, and the effect of the use on the potential market or value of the copyright work. Only court can determine whether a particular use is fair use. Lloyd J. Jassin, Fair use in a nutshell: a roadmap to copyright’s most important exception, www. copylaw.com/new_articles/ fairuse.html

Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/Derivative_work Copyright Law of the United States and Related Laws Contained in Title 17, chapter 1, section 101 of the United States Code, www.copyright.gov/title17/ † ‡

My intension in this paper is to shed light, amongs other things, upon the foloowing problems. Even though some rights can be granted by fair use, copyright law imposes considerable restrictions on creativity. The first problem: “While the tradition of fair use with text is fairly mature, that tradition is much weaker with film, photographs, and sound”. The Sixth Circuit Court of Appeals stated in September 2004, that there is no right of fair use in musical recordings. “Get a licence or do not sample” held the court. In other words: sampling is piracy, and the law bans piracy.25 This topic will be elaborated further in a subsequent part of this paper. Lawrence Lessig is a professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society, who dedicated a significant part of his career and public activity to copyright laws and their implications on culture and society. Lessig teaches and writes in the area of comparative constitutional law, contracts, and the law of cyberspace. Recently, Lawrence Lessig was named one of Scientific American’s Top 50 Visionaries for arguing “against interpretations of copyright that could stifle innovation and discourse online.” He is the author of The Future of Ideas, Code and Other Laws of Cyberspace and Free Culture - The Nature and Future of Creativity. Professor Lessig also chairs the Creative Commons project and a boardmember of the Electronic Frontier Foundation, a boardmember of the Center for the Public Domain, and a commission member of the Penn National Commission on Society, Culture and Community at the University of Pennsylvania.

The second problem: legal changes grant the full rights for almost unlimited period of time to the owners and forgets disregard the rights of our culture by preventing works from entering the public domain and becoming a part of the collective heritage. I would like to make it clear that this work is not intended to diminish the idea of copyright or the importance of copyrighted works. Copyright gives the creator of an original piece the rights to his piece, which are rightfully his. However, in addition to protecting the owner’s rights, the copyright also forbids many things that do not neccesarily infringe the rights of the creator. In a series of extensions, started in the 19th Century, copyright rules got gradually tightened and the possibilities of creativity in Western culture were reduced. In 1993 the European Union passed the ‘Directive on harmonizing the term of copyright protection’, which ensured that there was a single duration for copyright across the entire EU. The duration was set in accordance with 18

Lawrence Lessig, ‘Creative freedom for all’, Wired, Issue 12.11, November 2004, CondeNash Publications, 188-189, www.wired.com/wired/ archive/12.11/larry. html?pg=2

Copyright and copyright extensions The modern concept of copyright regarded the reproduction of books in print and was originated in Britain in 1710 with the Statute of Queen Ann. The new law granted the exclusive copyrights to authors (as well as publishers), for a period of 14 years and the ability to extend the term by another 14 years. If the author wouldn’t extend it or if if the 28 years have passed the work would pass into the public domain. The law then didn’t include derivative works, which meant that any person could adapt an existing piece of printed material to a different form. In 1790 the American Congress passed a law similar to the British Statute of Ann. Gradually, during the years, the the law became more restricting and more extensions to the copyright term have been made. A change in the law in 1831 extended the term to 42 years. The Berne Convention† of 1886 importantly established the recognition of copyrights between sovereign nations (before, nations refused to recognise the works of foreign nationals as copyrighted). The convention also provided for a minimum term of private copyright protection to the life of the author plus ﬁfty years, with the ability to change it within any country. In 1909 the American law extended the term of copyright to 56 years from the day of publishing. In the 20th century the term of corporate authorship was extended 12 more times, and 59 years in 1962. From 1965 to 1976 a series of extension acts have gradually increased the term to 75 years of copyright. including the Sonny Bono Copyright Term Extension Act of 1998. †

Lawrence Lessig, Free culture: the nature and future of creativity, 2004 New York: PenguinBooks. Full name: The Berne Convention for the Protection of Literary and Artistic Works.

the law in Germany, which had the longest copyright term in any of the EU states, for life of the author plus 70 years after his death. This extension also revived copyrights that had already expired. In a form of reciprocity (the extension was made available within the EU to non-EU copyright owners) it lead the way to the controversial US Sonny Bono Copyright Term Extension Act of 1998. This act extended the duration of US copyright by 20 years, to fit with the EU, in the case of individual work, or 75 to 95 years in the case of corporate authorship and works that were first published before 1st January 1978. The act increased the copyright term for works that were still under copyright by 20 years as well, thus “effectively ‘froze’ the advancement date of the public domain in the United States for works covered by the older fixed copyright term the law gave. Under this act, no additional works made in 1923 or after, and that were still in copyright in 1998, will enter the public domain until 2019”.26 This act, nicknamed ‘The Mickey Mouse Protection Act’, also halted the release of Walt Disney’s animated short films from 1928, Steamboat Willie 27 and Plane Crazy,28 as they were about to enter the public domain between 2000 and 2004. Most people are not aware that Disney’s Steamboat Willie was a parody on Buster Keaton’s motion picture Steamboat Bill, Jr. 29 which was produced earlier that year and was not part of the public domain. Steamboat Willie is nowadays more remembered than Keaton’s original, maybe due to the fact that it was Mickey Mouse’s first appearance.

Mickey Mouse starring in Walt Disney’s Steamboat Willie, 1928. Wikipedia – the free encyclopedia, www. en.wikipedia.org/wiki/ Sonny_Bono_Copyright_ Term_Extension_Act 26

Written and directed by Walt Disney and Ub Iwerks. USA, 1928. 28

Written and directed by Walt Disney and Ub Iwerks. USA, 1928. 29

Written by Carl Harbaugh, directed by Charles Reisner, USA, 1928.

In addition, Walt Disney based many of his feature animations on stories in the public domain, written by other writers like the Brothers Grimm and Lewis Carrol . Among the famous examples are ﬁlms like Snow White and the Seven Dwarfs (1937), Pinocchio (1940), Cinderella (1950), Alice in Wonderland (1951), Beauty and the Beast (1991) and more, As a whole, the afore mentioned in fact means that Walt Disney and the Disney corporation are using the “Rip – Mix – Burn” way, if to quote Apple’s tag line from 2001.30 Albeit, Disney wouldn’t allow other people to treat their works in the same manner. Every time Mickey Mouse is about to pass into the public domain, copyright terms are extended, and “No one can do to Disney, Inc. what Walt Disney did to Brothers Grimm”.31 Copyright law has important implications on our culture and society. It not only limits the possibilities of creativity, but also diminishes the cultural heritage available to the public.

“Rip. Mix. Burn.” was Apple’s controversial tag line in an advert for a new iMac they released in 2001, which included a CD-RW drive. This was the ﬁrst computer to include such a device as a standard feature and the advert caused an angry call out from media moguls. 31

Lawrence Lessig, Free culture, O’Reilly open source conference, San Diego, CA, 24 July, 2002, www.eff.org/IP/freeculture/

“Never has it been more controlled... Never in our history have fewer people controlled more of our evolution of our culture.” Lawrence Lessig, The Future of Ideas, 2001, New York: Random House.

By limiting the ideals of fair use the legal system disencourages creative thought and the production of derivative works which could have had cultural signiﬁcance. By continual extension of the copyright term, it prevents cultural works from entering the public domain and thus deters the development of cultural resources.

Hybrid image by the author, incorporating the photograph Mellow Yellow by Tom Forsythe, 1999, and text based on the letterpress work God® Bless™America© by Simon Johnston, 1993.

urs is less and less a free society In the following part I would like to elaborate further the idea that I have already expressed at the beginning of this paper: the creative process is inﬂuenced by works that have existed before. As I have previously stated, copyright law can sometimes be very restricting for innovative artistic creation. In many ways the idea of intellectual property and corporate lobbying are holding back aspiring artists from creating new pieces. Even when an artist creates a work of art based on an existing copyright protected work, there is always the possibility that if his work will be regarded as infringing copyright then it will be prevented from being published.

Facing page: Tom Forsythe, Land of milk and Barbie II, 1999, photograph. Below: Tom Forsythe, Mixer fun, 1999, photograph.

In order to substantiate my argument, I would like to present a few examples in which copyrights protected works limited or tried to limit creativity, many times on the expense of important social messages that artists tried to convey in their art. On 24th of August, 1999, Tom Forsythe was served with 30 something pages of a complaint from Mattel, the company that created and produces Barbie dolls. The complaint involved alleged copyright and trademark infringements over his series of photographs called “Food Chain Barbie”.32 Forsythe created the series as a “stab at mindless consumerism, the impossible beauty myth and the advertising that brings it all into our lives”. Mattel sued Forsythe for displaying Barbie as the piece of plastic it really is rather than as the role model that Mattel has marketed it as. One of the main reasons that corporations sue artists like Forsythe is to frighten them and make them back off from using copyrighted work. The ensuing trial (which lasted for four years) all backﬁred Mattel and they lost at the Ninth Circuit Court of Appeals. The judges stated that the case was ‘unreasonable and frivolous’ and ordered the company to pay all the legal fees and expenses.33

National Coalition Against Censorship, www.ncac.org/issues/ foodchainbarbie.htm 33 Ibid. 23

Even though this case is an example of an attempt to control creativity using copyright law, the copyright owner didn’t succeed in blocking the art. In other cases artists were not so fortunate. Air Pirates were a group of cartoonists who created two issues of an underground comic called Air Pirates Funnies in 1971. The members of the Air Pirates group shared a common interest in styles of comic strip masters. Each of the group emulated or paid homage to a famous cartoonist. The founder of the group, Dan O’Neill, had an obsession with Walt Disney’s Mickey Mouse. O’Neill, with another member of the group, Gary Hallgren, created stories that were based on some of Disney’s characters. The new creation engaged Disney characters in adult behaviours such as sex and drug consumption. The aim of O’Neill and Hallgren’s stories were to confront Mickey Mouse as a symbol of conformist hypocrisy in American culture and the increasing dominance of the Disney corporation over the chighly inﬂuential American culture. Disney, in turn, ﬁled a lawsuit alleging, amongs other things, copyright infringement, trademark infringement and unfair competition against most of the group’s members. The Pirates responded by alledging that their parody of Mickey Mouse was fair use. The Air Pirates lost the case. The court said that the Air Pirates use of Mickey Mouse did not fall within the ambit of fair use.

Illustration from the Mouse Liberation Front’s Air Pirates Special Pirate Edition, author unknown.

Left: Air Pirates Funnies, July 1971. Right: Air Pirates Funnies, August 1971.

A different example shed light on how the law can be unrestricted. This other example comes from the other side of the “iron curtain”. A character called Cheburashka was created in the Soviet Union in 1966. According to the story, Cheburashka is a creature unknown to science, and one of the protagonists in the story Crocodile Gena and His Friends, created by Russian writer Eduard Uspensky. Cheburashka is also the hero of an animated film series by Soyuzmultfilm studio. Cheburashka is a very famous and loved image in Soviet culture. He was chosen as an official mascot for the Russian Olympic Team for the 2004 Olympic Games in Greece. In 2003, Andrey Kuznetzov and Maksim Pokalev launched a project, named “Cheburgen”, as homage to the famous hero. The project accepted every work on condition that it “will, either implicitly or explicitly, depict the images of the great cartoon, familiar to all normal people”.34 The project became an immediate success in Russia, especially after it was published via the internet. Shortly after the project was launched, everybody, not only artists, could contribute their works to the project. Its website became a place where people can share their humour, interpretations and creativity influenced by Cheburashka. During the Communist regime in the USSR, copyright laws virtually did not exist. The advancement of copyright began in Russia only after 1990, and the rules are less draconian than in the rest of the world. The concept of Kuznetzov and Pokalev’s exhibition, works which are based on the original creation, and actually incorporated other famous

The Hieroglyph, www.hiero. ru/project/Chebur 34

Left: One second before awakening from a dream caused by the ﬂight of a bee around a pomegranate, Salvadore Dalí, 1944, oil on canvas (51 x 40.5 cm) Right: Urmany-Ustu, Andrey Kuznetzov, 2003. Part of his series, called Cheburaki, combines Cheburaska in famous places, artworks or images.

artwork, was possible due to the relative openness of the Russian copyright laws and a long cultural tradition where such law didn’t exist at all. When it comes to creating art for the sake of creation, even when using copyrighted material, the copyright owners, in Russia, are less rigorous. Probably the most illustrative examples to show the impeding effect of copyright on creativity comes from the music industry.

Andrey Kuznetzov, The horrible revenge of the national hero, 2003.

In 2004, Brian Burton, a young producer better known as Danger Mouse, mixed Jay Z’s The Black Album 35, with The Beatles’ White Album 36, and called it The Grey Album. He soon sent out 3,000 promo copies. Danger Mouse used the music of The Beatles to create the sounds and backing vocals for Jay Z’s album. Danger Mouse cut the original Beatles’ tracks and mixed the beats and pieces together with The Black Album’s acappella version. Def Jam, Jaz Z’s label, released that version in order to let other musicians recreate and to build upon it. Unlike Jay Z and Def Jam, EMI, who control the rights to the sound recordings of The Beatles,37 didn’t want to share these rights with others. They handed Danger Mouse a ‘cease-and-desist’ order, which meant that he needed to stop any reproduction of the Grey Album, or else they will take the matter to the court. Danger Mouse complied with EMI but the album continues to circulate on the internet, by activist websites like Stay Free Magazine 38 and in by peer-to-peer (P2P) software users. Both EMI and Sony/ATV sent legal threats to many of those websites but later backed down and The Grey Album remains safely online. “As far as art is concerned, I’ve never really worried myself too much with what’s legal. At the end of the day, I’ll still make the same kind of music I’ve always made – even if it’s just for me and my friends to hear,” Danger Mouse said last year in an interview to Wired Magazine.39 26

Jay Z, The Black Album, Roc-a-fella/Def Jam, USA, 2003; Jay Z, The Black Album (acappella), Roc-afella/Def Jam, 2004 The Beatles, White Album, Apple/EMI, UK, 1968. 36

The publishing side of The Beatles’ catalogue is owned by Sony Music/ ATV Publishing, a venture between Sony Music and Michel Jackson. Stay Free Magazine, www. stayfreemagazine.org 38

Eric Steuer, ‘The remix masters (14)’, Wired, Issue 12.11, November 2004, Conde-Nash Publications, 198, www.wired.com/ wired/archive/12.11/ beastie.html?pg=4&

The Verve, headed by Richard Ashcroft, released their third album, Urban Hymns, in 1997.40 The song Bitter Sweet Simphony, was released as a single prior to the album, and reached #2 in the UK singles chart. Later, the album reached #23 on the American Billboard charts. This was the ﬁrst time in The Verve’s career that they had received high praises from the critics as well as major commercial success. In Bitter Sweet Simphony, Richard Ashcroft used a sample from an orchestrated version of one of The Rolling Stones’ minor hits, The Last Time.41 Although, Bitter Sweet Symphony was written almost entirley by Richard Ashcroft, he gave credit to Keith Richards and Mick Jagger. The Verve cleared the rights for the sample before the release, but after the great success of the song, one of The Rolling Stones’ former managers, Allen Klein, who owns The Rolling Stones’ pre-1970 catalouge, sued the group for using more than it was discussed in the licencing agreement. The Verve vehemently disputed. The legal battle resulted with the group turning over 100% of the royalties from the song, as well as copyright and songwriting credits to Klein and the Rolling Stones.

The Verve. From left: Peter Salisbury, Simon Jones, Richard Ashcroft, Nick McCabe, Simon Tong. The Verve, Urban Hymns, Virgin, UK, 1997. 40

The Rolling Stones, Out of Our Heads, Abkco, US, 1965. 41

Moreover, Allen Klein used his newly acquired rights over The Verve’s song, and — disregarding the group’s objection — licenced it to Nike, to be used in a multi-million dollar television campaign. To add even more bitter to the symphony, when the song was nominated for a Grammy award, the nominees were Mick Jagger and Keith Richards, and not The Verve. The group broke up after Ashcroft suffered from a nervous breakdown as a result from the loss. The Rolling Stones’ The Last Time was actually inspired by a traditional Gospel song called This May Be the Last Time.42 The Stones’ derivative was based on a performance by The Staples Singers, which have never recieved any royalties for it. As far as I know no one owns the rights for the original song and the lyrics were changed by the Stones, but many people feel that The Staples Singers were ripped off and should have been compensated.

The Staples Singers, This May be the Last Time, VeeJay, US, 1954. 42

The examples above strongly suggest that our freedom to develop our culture has been diminished, and we constantly losing the control of it. I believe that today the control over the culture is concentrated in the hands of a group of few strong and powerful people while it is supposed to be in the hands of the public. The small group that controls the culture has the power and the money to extend its inďŹ&#x201A;uence over senators, judges and even laws, and these have become their helpful hands in obtaining an unlimited control over products, services and ideas. I feel that the culture today is not OUR culture; I feel that it is copyrighted culture. It is owned, registered and trademarked, especially by media corporations and others of their kind. When it comes to the big media companies, the issue becomes more complicated. It is not a person we need to contact in order to get permission, it is an organization that seeks proďŹ ts and revenues. These companies are making their money from the royalties and from selling the rights of their creations. Almost every form of consumer media is being touched by the long hands of the big media corporations. Time Warner and Disney, amongst others, own production studios for ďŹ lms, television and music; publishing companies of books, graphic novels and magazines; online websites and software manufactures; television and radio channels. On most occasions they own companies that have

Zohar Manor-Abel, Corporate Connection, v2 (part), 2003.

outreach in different sectors so the works stays “in house”. They create the media, which, most of the time, passes from one office to another, making derivatives of the work within the company: from a novel (for instance, Batman) - through the publishing house (DC Comics) - to the film studio (Warner Bros.) - and to the music production (Warner Music Group) and film distributor (Warner Bros. Pictures Distribution and Warner Home Video). The employees and contractors of these companies, create art in any medium or form, which are immediately subjected to the copyright ownership of a respective corporation. These creations are then passed to us, the consumers. From the corporation’s point of view, the culture moves in one direction from them to us. We have no right to do anything with these creations, while they become more and more important constituents of our culture. These corporations don’t care about the culture, although they control it. They are taking parts of our culture, remixing it, and then, not letting anyone touch “their” creation. I understand that every person has the right for his own property, be it physical or intellectual, and that what is done with a property is subjected only to the rights of the owner. However, when artistic work goes to the public and becomes a part of the collective culture, in some aspects, this work should belong to the public. Mickey Mouse and Barbie are registered trademarks as well as a copyrighted material. But from the cultural perspective they also have an additional, broader role. They are symbols which Disney and Mattel were trying to establish as culturally important and to make people identify themselves with. Some people might want to use these things, which have already become acceptable cultural symbols in different ways. Some might even want to use them in order to criticize them and their message. Art always looking on life as it is, always takes parts of the culture and changing it, and as these corporate symbols are now part of the world, artists should some right to transform them. When everything is copyrighted – little space is left for creation. Moreover, the creation can become theft. People who try to build upon culture, as it has always been, without clearing copyrights beforehand, are called pirates, and there is a great chance that they will be prosecuted. Who has the right to judge on what occasion artistic derivatives should be authorized or shouldn’t?

Top: Walt Disney’s Mickey Mouse, born 1928. Bottom: Mattel’s original Barbie in swimsuit, 1959. 29

ree societies enable the future by limiting the pas Technological developments of the past ten years posed a serious challenge to copyright. With the use of the internet and the development of new technologies it is easier to come by copyrighted material that artists would like to use and to build upon. Search engines like Google and Yahoo!, P2P software like KaZaA and Lime Wire, and already built-in software like Apple’s Garage Band and iMovie give more and more prospective creators the ability to transform material. Until recently, these devices were hard to come by. Thus, as technology progresses, the copyright holders are trying to prevent the use of this work and to restrict that ability in different ways.

Facing page and back cover: Diana Thorneycroft, Mouse, Boy, Dog, Man, White Mouse, Man with Large Nose, Graphite on paper, 2001-2. Part of the Illegal-Art.org online exhibition for works that were liable for copyright infringement.

The Digital Millennium Copyright Act (also known as DMCA) was introduced in 1998 and restricts some of the supposedly illegal uses of copyrighted material on digital platforms. “The act criminalizes production and dissemination of technology that can circumvent measures taken to protect copyright, not merely infringement of copyright itself, and heightens the penalties for copyright infringement on the Internet.”† In addition, The DMCA unintentionally disregarding fair use and unregulated use. These uses are traditionally accepted by the culture and are part of our society. This means that hacking is illegal, even if the hacker is trying to secure his right of fair use or unregulated use by hacking a device and improve it for his own use. The sharing of knowledge of hacking is illegal as well, unless it is for blocking other hackers. In 2004, the European Union passed the EU Copyright Directive, or EUCD, which is similar in many ways to the DMCA. The Inducing Infringement of Copyright Act (referred to as the Induce Act or as IICA ), is a bill which was written in 2004, and, unfortunately, might pass by the US Senate. It is intended to fight digital pirates by legally liable “whoever intentionally induces any violation” of copyright law. The bill is extremely broad and could lead to prosecution of peer-to-peer software makers, web sites, and might overturn home recording and fair use rights pioneered by the famous Betamax case of 1984. Many critics feat that certain tools used to today (such as CD ripping and burning software, as well as music players like the iPod) could be considered to “intentionally induce” copyright violations, despite their utility for fair use purposes.‡ No Electronic Theft Act (NET Act), is an American federal law provides for criminal prosecution of individuals who engage in copyright infringement, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be three years in prison and up to $250,000 in fines. Prior to the enactment of the NET Act in 1997, copyright infringement for a noncommercial purpose was apparently not punishable by criminal prosecution, although noncommercial infringers could be sued in a civil action by the copyright holder to recover damages.§ †

Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/DMCA

‡

Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/Induce_Act

Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/NET_Act 31

In the United States and other places, copyright is automatically attached to the original work of authorship upon its creation. The law requires to get permission before using a copyrighted work, unless that use is fair use. Any uses within the reach of the exclusive rights that the copyright grants require this permission. These exclusive rights usually leave out a lot of uses, which are independent of the regulation of copyright. Where fair use is a privileged use of a copyrighted work, unregulated use refers to the uses that don’t make a copy, and thus, not infringe the copyright. For example: Reading a book or giving that book to somebody else. In cyberspace, this traditional balance has changed. Since every use within the scope of digital technology produces a copy - every use needs to get permission ﬁrst, or rely on the doctrine of fair use to acquit from what otherwise would be an infringement. The need for permissions means that a person who wants to create a derivative will need a lawyer to help him with the case. The idea for the Creative Commons 43 was conceived by Lawrence Lessig and Eric Eldred when Lessig represented Eldred in a case challenging the Unites States Congress’ Term Extension Act. Lessig said: “Early on, he asked me whether there was a way that we could translate the energy that was building around his case into something positive. Not an attack on copyright, but a way of using copyright to support, in effect, the public domain.”44 The Creative Commons choice of licences comes and ﬁlls in a place where lawyers are not needed. They call it a “Lawyer free zone”. The establishment of Creative Commons provided proper answers to questions like: “What can I do if I want to share my piece?” and “How can I allow derivatives or remixes of my work?” The idea, which was based on an original concept by the Free Software Foundation (FSF)45, was to produce simple licenses that artists, authors, educators and researchers could use in order to give users around the world some privileges in ways of using their works. With a Creative Commons licence you can give others the privilege to use your work, or you can know if you are allowed to share or make a derivative without asking a direct permission from the creator. Lessig said that “If the default rule of copyright is “all rights reserved,” the express meaning of a Creative Commons licence is that only “some rights [are] reserved.”46 32

www.creativecommons. org 44

Lawrence Lessig, CC in review: Lawrence Lessig on supporting the commons, newsletter, 6/10/2005, www. creativecommons.org/weblog/entry/5661

The Free Software Foundation promotes the development and use of free softwares, www.fsf.org, www.gnu.org 46

Lawrence Lessig, CC in review: Lawrence Lessig on supporting the commons, newsletter, 6/10/2005, www. creativecommons.org/weblog/entry/5661

The owner selects the type of copyright licence which suites him the most, by using 4 basic components: Attribution (meaning the creator requires attribution as a condition of using his or her creative work); NonCommercial (meaning the creator allows only a noncommercial uses of his or her work); No Derivatives (meaning the creator asks that the work be used as is, and not as the basis for something else); and Share Alike (meaning any derivative you make using the licenced work must also be released under a Share Alike license).47 While using these options, Creative Commons are offering 6 core licenses, all bearing a (cc) mark instead of the copyright © mark. They also included licences to release copyrighted material into the public domain or giving licenses similar to the original Satute of Queen Ann, of 14 plus 14 years which they call Founder’s Copyright. These licences do not only enable the creators to permit a certain usages of their work, but also help the users to ﬁnd out what they can do with a speciﬁc work. The Creative Commons website, and search engines like Google and Yahoo!, let users search for works which are registered under a Creative Commons licence.

Ibid.

One of the Creative Commons’ projects is ccMixter, a community music site, featuring remixes licenced under Creative Commons, “where you can listen to, sample, mash-up, or interact with music in whatever way you want”.48 A nice feature of the ccMixter website is that a user can track the development of a song, from the original, through all its adaptations.

www.ccmixter.org

Flickr, is a privately owned website recently bought by Yahoo! is an online photo management and sharing application that allows the set up Creative Commons licences to pictures and to share them with other people in accordance to the proper licnece. 49

www.ﬂickr.com

Another website which is deals with freedom of works is The Internet Archive. It is a non-proﬁt organization that was founded in 1996 in order “to build an ‘internet library’, with the purpose of offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format.”50 The Internet Archive contains collections of texts, audio, moving-images, software and archived web sites. They are also collecting Public Domain material which can be digitally preserved.

www.archive.org

FreeCulture.org is an international, predominantly run by students, organization, which believes “that culture should be a two-way affair, participation, and not merely consumption.”51 It was inspired by Lawrence Lessig’s book Free Culture and it seeks to place tools of creation and distribution, communication and collaboration in the hands of the common person through the democratizing power of digital technology and the Internet. One of their goals is to increase the recognition of the imbalanced control over our culture. Another goal is to restore that balance by returning to the original 14+14 years copyright introduced by the Statute of Ann.

www.freeculture.org, www.freeculture.org.uk

Example for a ﬂiar by the Free Culture organization at Brown University, USA, 2004.

I wrote this paper because I believe that creativity and knowledge should be free. Creativity in all ďŹ elds is by necessity inďŹ&#x201A;uenced by the past and relies upon it. Thus, by extending the years of authorship, and by passing harsh bills, the idea of copyright, as it is now, closes many doors in front of contemporary artists. The idea that we are free in our artistic creations is only a false impression. The power and the status of the corporations help to postpone the release of many creations into the public domain. They extend their control on creativity and knowledge, making them more and more unreached and further restricted to ordinary people. Thus, the contemporary culture and cultural resources actually become concentrated in the hands of the corporations. I believe that in a free modern society, everyone should have the right for free culture, for free art and for free knowledge, as they constitute the power and the progress of the human kind. My work and the ideas that I have expressed here were inspired from the contributions of various groups and people all over the world. I hope their effort to regain our freedom will inspire other people too. Freedom will help to advance human progress and creativity. Lets share our knowldege and inspiration.

î&#x20AC;˛ 35

ibliography Audio: Lessig, Lawrence, Free culture, O’Reilly open source conference, San Diego, CA, 24 July, 2002, www.eff.org/IP/freeculture/

Books: Lessig, Lawrence, Free culture: the nature and future of creativity, New York: Penguin Books, 2004. www.freeculture.cc Lessig, Lawrence, The Future of Ideas, New York: Random House, 2001. Lupton, Ellen, Thinking with type: a critical guide for designers, writers, editors, & students, New York: Princeton Architectural Press: 2004. Soon: Brand of Tomorrow, A Stone Project, ed. Blackwell, Lewis and Ashworth, Chris, Laurence King Publishing: 2001.

Images Dalí, Salvadore, One second before awakening from a dream caused by the ﬂight of a bee around a pomegranate, (oil on canvas 51 x 40.5 cm), 1944. Forsythe, Tom, Land of Milk and Barbie II, (photograph), 1999. Forsythe, Tom, Mellow Yellow, (photograph), 1999 Forsythe, Tom, Mixer fun, (photograph), 1999. Holt, Ashley, Notmickey, (pen, paper and photocopies), 2002. Hopper, Edward, Hotel Room, (oil on canvas, 152 x 166 cm), 1931. Hopper, Edward, Morning Sun, (oil on canvas, 71 x 102 cm), 1952. Hopper, Edward, Conference at Night, (oil on canvas, 70 x 102 cm), 1949. Johnston, Simon, God ® Bless ™ America ©,, letterpress work, 1993. Kostabi, Mark, Aesthetic Codes (Missing Pieces), (oil on canvas 46 x 61 cm), 1997. Kostabi, Mark, Blue Oblivion, (oil on canvas, 60 x 64 cm), 1991. Kostabi, Mark, First, Last and Security, (oil on canvas, 69 x 84 cm), 1988. Kuznetzov, Andrey, Urmany-Ustu, 2003. Manor-Abel, Zohar, Corporate Connection, v2 (part), 2003. Thorneycroft, Diana , Mouse, Boy, Dog, Man, White Mouse, Man with Large Nose, (Graphite on paper), 2001-2.

Internet Websites: www.archive.org www.artlebedev.com/portfolio/illustrations/akuaku/ www.artquotes.net/artists/kostabi-interview.htm www.ccmixter.org www.freeculture.org www.freeculture.org.uk www.ﬂickr.com www.google.com www.hiero.ru/project/Chebur www.illegal-art.org Copyright Law of the United States and Related Laws Contained in Title 17, chapter 1, section 101 of the United States Code, www.copyright.gov/title17/ Creative Commons, www.creativecommons.org Internet Movie Data Base, www.imdb.com National Coalition Against Censorship, www.ncac.org/issues/foodchainbarbie.htm Stay Free Magazine, www.stayfreemagazine.org The Free Software Foundation, www.fsf.org, www.gnu.org Wikipedia – the free encyclopedia, www.en.wikipedia.org

Motion Pictures: Allen Woody, A Midsummer Night’s Sex Comedy, direction: Allen, Woody, USA: 1982. Besson, Luc, La Femme Nikita, direction; Besson, Luc, France: 1990. Carriére, Jean-Claude, Vigne, Daniel and Zemon Davis, Natalie, Le Retour de Martin Guerre, direction: Vigne, Daniel, France: 1982. Curtis, Richard and Atkinson, Rowan, The Black Adder, UK: airing: 1982-1989. Disney, Walt and Iwerks, Ub, Steamboat Willie, direction: Disney, Walt and Iwerks, Ub, USA: 1928. Disney, Walt and Iwerks, Ub, Plane Crazy, direction: Disney, Walt and Iwerks, Ub, USA: 1928. Fischli, P., and Weiss, D., Der Lauf der Dinge, direction: Fischli, P., and Weiss, D., Germany: 1987. Getchell, Robert and Seros, Alexandra, Point of No Return, direction: Badham, John, USA: 1993. Harbaugh, Carl, Steamboat Bill, Jr., direction Reisner, Charles, USA: 1928. Kennedy Martin, Troy, The Italian Job, direction: Collinson, Peter, UK: 1969. McCullah, Karen and Smith, Kirsten, 10 Things I hate About You, direction: Junger, Gil, USA: 1999. Meyer, Nicholas and Kerncham, Sarah, Sommersby, direction: Amiel, Jon, USA: 1993. Prévert, Jacques, Le Portes de la Nuit, direction: Carné, Marcel, France: 1946. Powers, Dona and Powers, Wayne, The Italian Job, direction: Gray, F. Gary, USA: 2002. Robbins, Jerome and Wise, Robert, West Side Story, direction: Robbins, Jerome and Wise, Robert, USA: 1961. Stefano, Joseph, Psycho, direction: Hitchcock, Alfred, USA: 1960. Stefano, Joseph, Psycho, direction: Van Sant, Gus, USA: 1998. 38

Stoppard, Tom, Rosencrantz and Guildenstern are Dead, direction: Stoppard, Tom, USA: 1990. Surnow, Joel and Cochran, Robert, La Femme Nikita, Canada, airing: 1996-2001. Wieden and Kennedy, Cog, Honda, UK: 2002.

Music The Beatles, White Album, 1968, UK: Apple/EMI. Jay Z, The Black Album, 2003, USA: Roc-a-fella/Def Jam. Jay Z, The Black Album (acappella), 2004, USA: Roc-a-fella/Def Jam. The Rolling Stones, Out of Our Heads, 1965, US: Abkco. The Staples Singers, This May be the Last Time, 1954, US: VeeJay. The Verve, Urban Hymns, 1997, UK: Virgin.

Musicals: Laurents, Arthur, West Side Story, lyrics: Sondheim, Stephen, direction: Jerome, Robbins, Winter Garden Theatre, New York: 1952.

Periodicals Goetz, Thomas, ‘Sample the future’, Wired, Issue 12.11, November 2004, New York: Conde-Nash Publications, 181 - 183, www.wired.com/wired/archive/12.11/sample.htm Lessig, Lawrence, ‘Creative freedom for all’, Wired, Issue 12.11, November 2004, New York: CondeNash Publications, 188-189, www.wired.com/wired/archive/12.11/larry.html?pg=2 Silberman, Amichai, Identity=Identity?, Kaveret (Beehive), journal of the department of behavioral sciences, No. 11 (August), 2005, Rishon le Tzion: The College of Management. Steuer, Eric, ‘The remix masters (14)’, Wired, Issue 12.11, November 2004, New York: Conde-Nash Publications, 198, www.wired.com/wired/archive/12.11/beastie.html?pg=4&

Software New Oxford American dictionary, 2nd edition, Dictionary 1.0, Apple Computers, 2005.

Weblogs: Jassin, Lloyd J., Fair use in a nutshell: a roadmap to copyright’s most important exception, www.copylaw.com/new_articles/fairuse.html Lessig, Lawrence, CC in review: Lawrence Lessig on supporting the commons, newsletter, 6/10/2005, www.creativecommons.org/weblog/entry/5661 Phillips, Jeremy, and Simon, Ilanah, IP Kat weblog, http://ipkitten.blogspot.com/2003/07/ipkat-visits-ica.html