The issue has created a debate that posits those in favor of the transformative reuse of culture against the established copyright industries—which include the MIAA, the MPAA, and the Mattels and Disneys of the world—who have much to gain from restricting the use and sharing of their copyrighted goods, even in instances where they are not detracting from the market value of the original. Those belonging to the former camp believe that individuals should have legal rights and access to cultural artifacts in order build on existing works, in part for the sake of being able to create new artwork, but even more importantly for the purpose of critique and commentary—to draw attention to the advertising ridden, commercial, and highly privatized culture in which we now live. As Lessig (2004), McLeod (2005) and others argue, the digital "capturing and sharing" that has become vital to YouTube and mash up artists is nothing new and has always been integral to art making. The difference now is that companies with deep pockets are doing their part to influence legislation to prevent the remixing of copyrighted work, regardless of whether it is for commercial or noncommercial purposes. Despite the money, power, and lobbyists in the corner of big business, there are individuals and organizations working diligently to expand the rights of artists and the well-being of creativity, culture, and the commons. A closer look at the practices in visual art and music making illustrate how the law intersects with the work of artists and remix culture in the digital age. Traditionally, building on the work of others has been a common and accepted practice in the world of visual art. However, the challenges brought on by digital culture and the Internet are having an effect even here. At a panel discussion in Hollywood, FL, a lawyer advocating the strong hold that copyright laws have on artists explained that artists need to think about creating their art as if they were working in a "clean room." In response to this statement New York City based artist Joy Garnet emphatically argued that:
The history of art is the history of copying. The history of painting, sculpture, pre-photography is the history of the copy, of the transformative and derivative use. The history of referencing, one-up-manship, competition, battles, and it was open. And it's always been that way. Nothing comes out of clean room. There is no clean room. That's a fallacy. Everything is a mess. Our culture is interesting. You borrow. You don't go to your lawyer when you're about to make a work of art (December 2005, personal interview). Joy Garnett is one of an increasing number of artists who have received cease and desist letters relating to their artistic product. In Garnett's case this was for a painting she created based on a photograph she found online while googling for images. Garnett discovered the image on a website that was in a language she couldn't understand. It turned out to be an image from Susan Meiselas' Nicaragua, a famous photo essay published in 1981 that documents the revolution. Meiselas did not pursue the lawsuit once Garnett and her lawyer John Koegel responded to the letter but she continues speaks out against the decontextualizing and remixing of artwork in our increasingly technology-centric society. Garnett's response to this perspective is that: ...among artists, it's usually understood that everything is up for grabs. And you want everything to be up for grabs. And I take images, I take digital photos of my paintings and upload them the minute I've done them, so that they can be seen, and so that they can be discussed. And so the idea of locking it all down, so only you can say where it goes, who uses it, when, and how—it seems sort of counter productive, because then the only interpretations that will be accessible will be yours, and that's probably the narrowest thing you can do to your artwork. (December 2005, personal interview). Currently, laws about sampling in artwork continue to be a grey area in which decisions are determined on a case-by-case basis. Numerous other examples of artists whose work has either been suppressed because of extended copyright law, who have received cease and desist letters, or whose art exists in the grey area of the law have recently been featured as part of the traveling show, Illegal Art: Freedom of Expression in the Corporate Age, curated by Carrie McLaren, founder of StayFree Magazine. According to McLaren, many artists engage in self-censorship on a regular basis and choose not to use trademarked and copyrighted material because they are afraid of running into copyright problems (personal interview, December 2005). While the number of visual artists running into copyright problems is growing, they are still much less likely to face legal repercussions compared to musicians, especially sound collage artists, DJs, or producers. In the 1980s hip hop artists such as the Beastie Boys and Public Enemy took full advantage of the advent of digital samplers and began engaging in the remixing of samples and beats. Under the current U.S. copyright regime not a single beat—recognizable or not—can be legally sampled without paying a fee, not even for purposes that fall within the guidelines of "fair use." |
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