Tag Archives: Copyright

“The Game is Afoot”: Copyright, Fanbases, and Remix Culture

Before reading Lawrence Lessig’s Remix, I already had an interest in—if not very comprehensive knowledge of—copyright law. Lessig’s book reminded me of a recent(ish) legal case involving late-Victorian literature that I followed and which prompted me to think about the ways in which ideas of copyright law and remix culture are actually framed in public discourse.

Sherlock Holmes and John Watson Illustration by Sidney Paget for the story "The Greek Interpreter," which appeared in September 1893 issue of The Strand Magazine.
Sherlock Holmes and John Watson
Illustration by Sidney Paget for the story “The Greek Interpreter,” which appeared in September 1893 issue of The Strand Magazine.

About a year ago, Leslie S. Klinger, leading Sherlock Holmes expert and editor of The New Annotated Sherlock Holmes (a three-volume behemoth that took up quite a bit of my savings—and now quite a bit of my desk) filed a civil complaint against the Arthur Conan Doyle estate regarding the copyright status of the author’s most famous stories. Jennifer Schuessler of the New York Times gave a fairly thorough summary of the proceedings in her 15 February 2013 blog post, but the main gist is that Klinger protested against what he saw as unfair licensing fees for the (“remixed”?) versions of Doyle’s characters featured in “In the Company of Sherlock Holmes,” a collection of Holmesian stories he edited. Klinger argued that “since the main characters and elements of their story derived from materials published before Jan. 1, 1923,” they were no longer under the jurisdiction of U. S. copyright law, and his “complaint asks that the court make a declaratory judgment establishing  that the basic ‘Sherlock Holmes story elements’ are in the public domain” (Schuessler). Free-Sherlock.com, not to mention innumerable fan-sites, blogs, and social media outlets followed the case eagerly, the former providing a blow-by-blow of the actions filed, cases reviewed, and results achieved.

And, lo and behold, less than a year later (27 January 2014), Klinger—at least temporarily—won his case and Sherlock Holmes officially became part of the public domain. But what does that even mean?

In a segment titled “Sherlock’s Expiring Copyright: It’s Public Domain, Dear Watson,” All Things Considered explains that “A federal judge in Chicago recently ruled that the characters in Arthur Conan Doyle’s stories — excluding any elements introduced in the last 10 stories released in the U.S. after 1922 — now reside in the public domain”—even though those ten stories will be available within a decade. Yet, the matter does not rest there: Doyle estate attorney William Zieske claims that a forthcoming appeal will argue “that a character, particularly a literary character, really does not become entirely formed until the author has put down his pen and finished with the last story that develops that character” (All Things Considered). If we are using Lessig’s terminology, it seems we have reached an impasse (at least in opinion) between RW and RO.

Yet, I can’t help thinking about the dedicated Holmes fan-base, which has existed since the first stories first appeared in the The Strand Magazine in the 1890s and has only grown in size and enthusiasm over the course of the twentieth century, and in the wake of popular twenty-first century adaptations  like the superb BBC modernization, Sherlock. In fact, according to Christopher Redmond’s 2009 A Sherlock Holmes Handbook, “Sherlock Holmes has appeared in more films, and been represented by more actors than any other character” (232)–that is saying something, particularly considering the broad range of interpretations, parodies, and spinoffs that have been created in almost every medium possible.

Besides these “official” adaptations, there have also been a broad range of fan-created interpretations that exist largely online (art community and forum deviantART seems to be a major breeding ground). Popular iterations include slash pairing Johnlock, gender-swapped version Femlock (with some crossover to the previous iteration), and the ever-popular turn-human-characters-into-some-sort-of-adorable-animal (Sherlock ponies are a thing).

(http://bbcsherlockftw.tumblr.com/SherlockGIFS)
Adapting/remixing: it’s what people do. (Besides die, in the original context–James Moriarty (played by Andrew Scott) from BBC “Sherlock” episode, “The Great Game”)

Often, these “remixes” are artistic/aesthetic, but there’s also plenty of fan fiction, video mash-ups, and cosplay that supplement and fuel these offshoots. Gregg Gillis’ characterization of what he does with music being “more like a game and less like a product” (15) applies here–it’s probably safe to assume that most people in this particular fandom are simply engaging in these various ways out of love rather than with the desire to “publish” or profit from their “products” outside of sharing it with other fans. The “game” is indeed afoot.

What then do we make of this sort of unofficial “remixing,” particularly in the context of the still-raging debates about what use of texts/characters is allowed in legal terms, as well by the unspoken rules of fan-created media?

(A disclaimer: my appreciation of the Sherlock Holmes canon has never prompted me to venture into the realm of creating fan art, fan fiction, or “product” of any kind–I just observe many of these iterations with some amuse-/bemusement.)

When is spoken word a remix?

On Saturday night, I went out to dinner for a friend’s birthday.  In the space of dinner, drinks, and the car rides to and from Baltimore (about six or seven hours all told), we quoted at least nine or ten different movies or shows- probably more.  Archer, Parks and Recreation, Lord of the Rings, Anchorman, Futurama, and The Godfather all found a way into our conversation, usually to make a humorous point or affectionately mock one of our party.  Four out of the six people present are serious gamers, so quotes from video games made their way into the discussion as well. Someone even asked the waiter if he could make the “James Bond cocktail.”

None of us had invented those phrases or ideas, but we had requisitioned them and incorporated them into our daily life – the ultimate remix and integrated RW culture.  Lessig notes that digitization had “removed the constraints” that kept media tied to it’s physical files in the analog world (38).  Experiencing different types of media and then passing it along through spoken word until it becomes a part of mainstream life even further removes certain types of media from the digital equation.  They just become part of our collective psyche, making our culture into a remix like the ones that Lessig talks about.

I guess what I was thinking about is, at what point does this happen?  When does something become so deeply ingrained in our everyday culture that it is no longer considered as being “remixed?”  When do phrases or media  from copyrighted works stop existing as  “stolen” or “easily available” (44) and start just existing as things that are a part of culture?  I don’t think that there’s a copyright law against spoken word unless it’s preserved on film or in a sound clip, but we were technically adding those things to our conversation and claiming them as our own for that moment.

When I was a final-semester senior  here at Delaware, I served as a Writing Fellow at the  Writing Center.  I worked with a class of fifteen Chinese students (I think they were first years), and one of the first and most pervasive issues we encountered was attribution.  Evidently, schools in China teach what sounds like a more extreme form of the way that Lessig’s friend Ben wrote– a  “collage” that utilized quotes, proverbs, or phrases that were the words of others with little or no attribution.  They were, in effect, remixing the words of experts, leaders, and other individuals to support their argument and have a new meaning.

It particularly struck me, because not only is that behavior accepted, but (on all accounts) seems to be encouraged and is a practice that applies across much, if not all of Chinese culture.  Oral tradition and stories are very important, and have become an element of Chinese culture that is simply regarded as that: a contributing part of their national identity, heritage, and history. Using someone else’s words is seen as a mark of respect to the original creator.  Comparatively, in the western world, people can become very upset if they aren’t given the proper credit.

I apologize for the fact that this likely didn’t make a whole lot of sense- I had a lot of problems making coherent long-form connections to Remix.  On a side note,  has anyone ever been sued or had copyright infringement laws leveled against them for using movie, song, or TV show quotes in regular conversation?  I’d be curious to know. I imagine the corporations and lawyers would make an absolute fortune every time someone did.

A Copyrighting Journey in Two Parts (Plus Cats)

you know you want to
you know you want to

Young Katie: Pro-Copyright

When I was fourteen-years-old and working on my first “novel” (a fantasy book written in a series of notebooks, usually during classes I didn’t like), my programmer-brother showed me how he could download free books on his TI-89 calculator to read during class. This was 1999; there were no e-readers. My brother was really into Linux and open source software and stuff like that. After gushing for a while about these free books, he asked me if I would ever consider publishing my book online for people to access for free: “So many people would read it, Katie! Plus you’re supporting information-sharing!”

He was completely baffled at my refusal to even consider this option. “How will I make money off of it if I make it available? I want to be a writer for my career, so I’ll need to make money in order to survive. Plus, people will steal my work and make money off of it by publishing it as their own,” I argued vehemently.

don't steal from me, you dirty Americans
don’t steal from me, you dirty Americans

Charles Dickens, my first Victorian love, was also really concerned about ownership and the property of one’s work. His travelogue American Notes and novel Martin Chuzzlewit both vehemently attack the US for various reasons, but one of them was due to the really lax copyright laws over books which led to all of his being pirated all over the place. Dickens was concerned both because writing was his way of life and because the pirated editions often twisted things in a way that he wasn’t comfortable (if Dickens loved anything, it was control).

Now-Katie: Anti(ish)-Copyright

But fast-forward to four years ago. My fantasy novel career ended in high school, when I became a more serious writer (and then got writer’s bloc and couldn’t write worth anything). I was an office staff person in a philosophy department and insanely bored most of the time (excepting certain seasons when I got to advise students or build the course schedule).

Due to this boredom coupled with a desire to be helpful, I created a fun blog for non-philosophers about how to understand philosophers. After all, I married a philosopher and worked with philosophers all the time, so why not use my observations to help others? The blog exploded with readers, and suddenly I was beset on all sides with emails (asking ME for advice), angry comments from philosophers who were under the impression that they were special snowflakes, and discussion in the comments sections of each entry. I kept my name off of things, and I tried to make it easy for others to use my blog posts in other things (papers, blog posts, emails; whatever they wanted).

That said, my opinion about copyright law has changed dramatically in the past fifteen years. I went from being adamantly for it to slightly-adamantly against it. Lessig discusses this phenomenon in his chapter “Cultures Compared” in Remix. Lessig quotes Victor Stone’s (of ccMixter) comments to him, which I am going to reproduce here: “You know … this discussion will be over in ten or twenty years. As the boomers die out, and they get over themselves by dying, the generation that follows … just doesn’t care about this discussion, and it’s part of the process and that’s it” (97).

I just want everyone to use my material and alter my material and add their own material. I wonder, though, if I also think this way because I am a liberal-liberal (non-democrat liberal). My value system is such that openness and sharing with others—without expecting payouts—is a really great thing. I have several friends who are still very pro-copyright (and very conservative), so I’m not sure that Lessig is completely correct in that my generation will be cool with less control. I am pretty sure that most of my pro-copyright writing friends* (none of who have actually published anything) are also deluding themselves into believing that they will be able to make a living by writing.

Of course, they also won’t be able to make a living by writing because there are people like me who want to constantly undermine the system with my free-words-for-everyone approach.

It’s not for everyone, though. I’m not sure it’s even a good system. What do you think? Do you have any good arguments for the copyrighting of writing?

P.S. Apologies for anyone who was looking for substantive material in my blog post and stumbled into “Katie’s reflections on her ideology of copyrighting journey.” It happens.

*This is excluding Janel. I’m thinking of my college friends who aren’t close to getting anything published for many reasons (vision, for one).

Last Bastions of Read Only Culture?

“RO culture speaks of profesionalism. Its tokens of culture demand a certain respect. They offer themselves as authority. They teach, but not by inviting questions.” (Lessig 84)

Like Michael has already pointed out on his blog post, the dichotomy between Read Only and Read/Write culture Lawrence Lessig portrays in Remix: Making Art and Commerce Thrive in a Hybrid Economy is a flawed one.

For me, the final breakdown of Lessig’s definitions of RO and R/W occur when he mounts an apologia for some places in our society that necessitate Read Only content. RO culture, Lessig writes, “is critically important, both to the spread of culture and to the spread of knowledge. There are places where authority is required” (85).

So what are his ironclad examples?

Congressional laws.

Guidelines for administering medicines.

Flight plans on commercial jetliners.

Um. All of those examples, while content created by “professionals” or “authorities” in their field (84), quickly reveal the very collaborative remix qualities from which Lessig tries to protect them.

For example, what texts carry more power than legislative documents? Very few. But legislators draw up laws with input from other elected officials, advocacy/lobbyists/special interest groups, lawyers, and political constituents. Congressional law does not live “on a wiki,” but it also does not appear on stone tablets from a higher authority. Frequently it mashes up pieces of other laws piecemeal. This (often frustrating) process requires several hundred elected officials to make laws, but hardly ever original material from scratch.

Image
Mr. Smith Goes to Washington

The example of writing guidelines for medicine dosing seems less Read Only than Congressional law, but not for people who see the underbelly of pharmaceutical research and development. We trust the dosing information on the Tylenol bottle we give our children, but even so we must take into account what we know about our own child’s health, weight, and previous history with the drug. Additionally, the research that goes into such guidelines changes over time and medicines are frequently pulled from the market when we know more. Hardly a great example of unwavering authority.

Finally, flight plans, like Congressional laws, take into account a tremendous amount of data in order to plot an ideal route. But ultimately, pilots and flight crew can and should have the power to improvise and respond to new information. It may be tough to make that argument with the ongoing mystery of Malaysia Air Flight 370, but it doesn’t change the fact that Lessig’s three supposed best examples of firm RO culture are neither as authoritative nor as unremixed/remixable as he indicates in his book.

In short, traditional content providers and artists are already complicit in remix culture.

Image
By Ryan Shaw

A more compelling argument Lessig makes in Remix: we must reimagine our relationship to R/W cultural practices and habits because the change has already come. College-aged students and their younger siblings have never experienced a world without highly visible remixes. If companies and lawmakers cannot figure out how to benefit from and encourage the current and continuing trend of remix/collaboration/R/W creation, the future is indeed dire. But not for the reasons they say it is.

Image
Dawn Endico on Flickr http://bit.ly/1gyP3yh

The Mythical Read-Only Culture

While I was reading Lessig’s Remix, I realized something.

I have never seriously imagined myself to have inhabited an RO environment. In the same way, I’ve never even considered a desire for privacy, at least not as Lessig describes it (or RO media).

When it comes to privacy, perhaps the reasoning behind this is obvious: I’ve used Amazon forever, and so I’m not super creeped out (technical term) for its fairly on-point suggestions for my buying choices. I’ve never imagined that I wasn’t being monitored. Perhaps, in addition to my (apparent) digital nativity, my years at Catholic School panopticon and SEC-compliant businesses, my urban residence and only-child status created this.

I don't see any citation here.
Shakespeare’s estate did not get paid for this.

When it comes to content creation and consumption, then, it should not be surprising that I’ve tended (on some fundamental level) to view all content as “public.” When I started writing fiction as a kid, it started out (as Lessig notes on 81, via Jenkins) as an “apprenticeship” of remixing–not in the literal fanfiction sense, but in the archetypical sense. I copied works’ conventions in order to enact their genres, only gradually moving away from this obvious forms of appropriation to the more abstracted forms: the practice of genre and audience awareness, of rhetoric, of convention employment. All writing (and all creativity) is always remix, even if the remix is marked (as many are) by the refusal to pull content from the expected sources.

I first wrote fiction because I found the fiction I liked to be insufficient, and sought to practice creation in order to fill these gaps. I became a Literature Academic because it appeared, to me, that literature scholarship *really* needed my help. As egotistical as that sounds, I doubt anyone reading this isn’t nodding right now (if you’re the nodding type), or gesticulating in some way. You finish your BA in English out of a love of books, but what carries you through the apprenticeship of graduate programs (MA, MFA, PhD, whatever) is knowing that you need to fill a gap you’ve found.

Our greatest fear.
Our greatest fear.

I’m not really sure RO culture really exists outside the minds of a few people at the RIAA. I’m not even sure Lessig thinks it exists (or at least, in 2008, believed that it would survive the decade). For any of Remix‘s other flaws, the hybrid culture Lessig describes has a high degree of veracity.

This is (maybe?) a vindication of Chris and Callie’s insistence that Broadcast Media is not passive, at least in the Michael-verse, because I can’t for the life of me think of a time when I imagined something to be really read-only. Lessig’s notes on remix in education, too, seem obvious given my history of writing and my current pedagogical (and theoretical) tendencies to see conventions, genres, and appropriations as the backbone of a text, and the meaningful recombination of research data plus new observations from that recombination to be the height of professional writing (see: all instructions for academic writing ever).

I can only hope Lessig’s right about the law catching up to the culture—of ditching its enterprise to perpetuate/create the RO culture myth—since it never occurred to me prior to today that the AMVs I consumed avidly just 8 years ago were in some way potentially illegal. I always considered the arguments in favor of royalties in music and film to be predicated on an elitist belief that film and music, as less-accessible-therefore-less-pedestrian arts than writing, were therefore more worthy of reward. As more and more of our readings gesture towards it (however remotely), I begin to get the impression I was right–that digital means gradually break down access barriers to new forms, and threaten the cultural elite that benefits. Much of the drama around the Internet has to do with controlling access, with creating artificial scarcity—with inventing the myth that an RO culture ever truly existed, much in the same ways other reactionaries create nostalgic mythic pasts to defend.