With the great digital impact upon creation and its using, that is, producing and consuming, copyright law has become not only subject of protecting and promoting creativity within the popular culture, but also it has become an object of popularity itself. We are witnessing the continuous dialogues, if not conflicts, between those justifying its existence and those calling for its greater flexibility and balance. However, in context of its popular image is there a new tendency of the copyright law, or more specifically by those exercising it, in viewing creativity differently? Or to put it other way round –is there a new tendency in permitting copyright infringement? In trying to answer this I will look at two different forms of ‘mash-ups’ that appeared recently on the creative landscape of music and art.
Two weeks ago, DJ Greg Gillis or Girl Talk published on a record label ‘Illegal Art’ his newest fifth album “All Day” of mash-ups which back in 2008 the NY Times named his album ‘a lawsuit waiting to happen’. In anticipation of some popular copyright stuff, Joe Mullin in his article poses very good question ‘Why the music industry isn’t suing Mash-up star ‘Girl Talk’?’ He is wondering why the ‘lawsuit waiting to happen’ is waiting still for the fifth time. Subsequently followed by sane reasoning, he provides a fair point: “Gillis would be a ready-made hero for copyright reformers; if he were sued, he’d have some of the best copyright lawyers in the country knocking on his door asking to take his case for free.”
In other words, it is only because it will attract such a great publicity, likewise the Napster case, and once again those lobbying for its rigid protection even if they win the decision they will lose one more battle on the long run. Mullin states that Girl Talk is just one artist with a laptop who will not be followed by other creative established artists, so in that case the industry will remain quiet. Is the industry scared of popularity!? Obviously, artists does not seem having any problem with mash-ups; it is the labels and publishing industries that fight against that. Nevertheless, as Mullin’s article states that Electronic Frontier Foundation are waiting for the lawsuit to happen as "they’re positively eager to litigate a case over music sampling, which they believe is a clear-cut case of fair use.” Rule out sampling as fair use in America and copyright will gain even greater popularity. Entertainment copyright law made in America!
I do not think there is any copyright war on the long run. Neither I think the 'fair use' notion helps much here. Those using copyright law as a tool for financial gaining, or to be more sympathetic - those wanting to protect creativity, are just adapting to the new mode of copyright existence without knowing it. It seems like there is some silent changing of the copyright system itself and its understanding, affecting everyone –from creator to user in allowing and recognising the novel developments of creation or knowledge sharing, producing and consuming. No matter what side you are on, you just cannot control it. Deliberately or not the great recording companies are restraining from lawsuits only because there is no other way. Probably law in general or this one in particular always has been tolerant or flexible enough to embrace novelties (something most scholars and civil initiatives are trying to succeed today), but it always needed some additional time.
Talking of time, I saw Christian Marclay newest work ‘The Clock’ at the White Cube Gallery which already gained a great acclaim with his cinematic work that tried to grasp the essence of time, while inviting the viewer to experience time by viewing thousands of excerpted film scenes and dialogues related to time, through using cut up-edit technique. The whole piece of 24h video material is screened in real time, depending on the place (time zone) where it is shown. While watching some extracts of the famous film “Time machine” around 17:42h the question of whether Marclay provided copyright licences started ticking together with my sensation of simultaneously seeing and feeling time.
In no time, I found the following answer to my question from Marclay himself in the Economist “Technically it’s illegal....but most would consider it fair use”. How is he so sure? In believe he or the institution that commissioned his work has consulted a lawyer, this transformative work goes beyond the ‘fair use’ protection. The article’s comment that he ’ultimately pays homage to the films, particularly the actors’ does not seem plausible. He is just an established artist, and in contrast to the music industry’s established musicians, appropriation is something common and moreover praised in artistic practices. Another argument could be that law can’t deal with re-mixes of great quantity of original materials used in one work. However the positive thing is whatever the arguments are there are flashes of ameliorating mode as to how copyright work or creation as such are approached by the creators, owners and users today.
Copyright law today is concerned more with its very existence rather than with the rationales why it was recognised at first state. Its justifications are just realms where political and economic powers are exercised, lobbying groups creating strict laws to fight digitalisation and control the consequences of reproducing and distributing. Nevertheless, copyright silently reshapes itself. Copyright law has always been silent, but its utter usage of protecting copyright has positioned it in a place not any other law would like to be. Nevertheless, it is that utterance that made it so popular. On the long run, possibly copyright will be saved by its very popularity.
Copyright law is not a product of this time and things do not change overnight, but they do change during 'All Day'. Goethe says - “The day is committed to error and floundering; success and achievement are matters of long range”.