CCTP-725: Cultural Hybridity/Remix Culture: Weekly Seminar Discussion
Week 4

Timely news: Google's Art Project: "Street View" Technology used for virtual tours of museums

Rip: Remix Manifesto | Website |Compare: U2 Window in the Skies

(we might be in, we might be out of the money, but) Sampling is Here to Stay

“… what the photographer is to the painter, is what the modern producer and DJ and computer musician is to the instrumentalist” – Shock G, Digital Underground (“Copyright Criminals”)

According to current copyright laws, if you sample one note from a song, you have engaged in copyright infringement and could face criminal prosecution. This can happen even if you try and manipulate the note from all recognition; if you get found out, you are still in trouble.

If I understand William Fisher’s argument correctly, he is a proponent of the view that property rights should function to achieve “a just and attractive culture” (in “Theories of Intellectual Property”). This view of property rights implies more than the individual; this view wants to ensure that an incentive for creative expression is kept in place while keeping laws loose enough so that a community can participate in recycling the work.

Much of the literature we read for this weak makes the argument that the copyright laws of today are no longer appropriate for a culture that depends – lives by and through – direct reference to other works.


When hip-hop was emerging as its own genre (before corporate music execs began seeing it as a potential cash cow) sampling was central to the musical form. Those innovating in the field sampled pieces of already existing music – mainly old school funk – to create beats that they could them layer with other samples or voices. The end result was something both new and referential. These days, the kind of explicit sampling on albums of the mid 80’s up until the early 90’s is an audio relic from the past. The copyright laws of today would make them virtually impossible to put out using through channels.

Jeff Chang (Co-Founder, Solsides Records) makes the same point that Lawrence Lessig makes in Remix Culture: we live in an (always already) remix culture. Accepting this fact, laws must change in order to help culture “do what it has to do” (“Copyright Criminals”).

Remix can be thought of as a “reinterpretation of history” – it is both its own creation as well as cultural reference. Tom Silverman from independent record label TommyBoy calls sampling “audio archaeology” (“Copyright Criminals”).


Alicia Dillon & Zachary Allard

Remix Culture: Questions of Ownership, Origins, Legal Status, Rights, Creativity
      • Digital Ontologies / legal ontologies: What is a digital media object? How can there be "copies" of identical digital files?
      • How can legal philosophy accommodate the "always already" state of remix culture? How can artists' or any citizens' created works be allowed commercial rights as well as reuse in the common culture?

Art is always already a remix.
Under the specific header of remix culture, two questions were posed. The first asking for definitions of “digital media objects” (which I will expand to defining art objects in general) in relation to originality, and the second addressing how we attempt to place legal restrictions, and therefore definitions/limitations, on acts of creativity. Today, our visual world is defined through instantaneous, ever evolving and increasingly interlinked clips, pieces, and bytes. Through a combination of an accumulation of history (ie: post as a necessary prefix) and our present digital age, contemporary art cycles at a rate never before seen. Not only is it disseminated faster than ever before, this digital reach (for it is certain that images and music alike can now be readily shared online) combine with modern tools has made sampling both easier as well as necessary.
However, sampling and the remix are nothing new, and is certainly not simply an arbitrary consequence of modern technology. Take for instance Jeffrey Cunard’s 2004 talk at Columbia, where in his address of “Artistic Inspiration” he presents the example of Raphael’s, The Judgement of Paris as having largely inspired Manet’s infamous Le Dejeuner Sur L'Herbe, and Picasso’s equally as infamous Les Demoiselles d’Avignon.

Raimondi Marcantonio. The Judgement of Paris. Engraving. 1516
Raimondi Marcantonio. The Judgement of Paris. Engraving. 1516

Raimondi Marcantonio. The Judgement of Paris. Detail
Raimondi Marcantonio. The Judgement of Paris. Detail

 Edward Manet, Le Dejeuner Sur L'Herbe (Luncheon in the Grass), 1863
Edward Manet, Le Dejeuner Sur L'Herbe (Luncheon in the Grass), 1863

Pablo Picasso, Les Demoiselles d’Avignon, 1907
Pablo Picasso, Les Demoiselles d’Avignon, 1907

Though Cunard repeatedly speaks to the idea of fair use as being defined by something that is, “sufficiently transformative,” this language is complicated by suits brought against Fairey’s “Obama Hope” campaign poster. How is this, in the laws eyes, not sufficiently transformative? -- It is my feeling that the remix, due to its unique case-by-case nature, in fact resists a one-size-fits-all vocabulary, which of course makes implementing any sort of (fair) legal structures incredibly difficult.
For art is increasingly reliant on the referent in order to say something new. Beginning with postmodernism, it has in many ways become an introspective practice, dominated by conceptual frameworks and demanding insider knowledge. In order to satisfy the needs of their prospective communities (whether it be painting, video, music, etc.) art must now, more so than ever before, present itself as smart. For rather than pass judgement solely on aesthetic, or insisting that the final product appear to have evolved history-less out of thin air (which today, if ever, ares on the side of impossible), in order to distinguish the good from the game changing, communities have always demanded that art say something new. At very least, the reward of acknowledgement demands that it make a positive (as in additive) contribution to the dialogue.
There is a saying with which we are all familiar, that history repeats itself. And while this saying is usually invoked to convey the understanding that we must learn from the mistakes of our past, it also presents as evident that human beings evolve not just with their present but also with the remnants of the past. Lawrence Lessig writes that he foresees a world with, “an extraordinary range of diverse culture could be accessible, cheaply, anytime and anywhere. Access could be the norm, not a privilege.” Certainly, today, our world is built increasingly on instantaneity, universal access, unrestricted availability. In other words, cultural consumption with minimal restrictions. Yet, of course with less restrictions on the consumer, comes more restrictions on the producer. In a world where anyone can be an artist the stakes become higher, the material becomes more and more recycled. Originality is necessarily redefined.
When all is said and done, art and creativity are nothing if not referential: in their images, samples, they are coded with relationships, histories, ideas-- social constructions in which they are suspended. That which we generally refer to as art is not only sustained by these things, it is in fact dependent. For within acts of creativity there are layers; art has never existed in a bubble. The innovative thinkers of our time do not act without inspiration from that which came before. Art, most certainly, is palimpsest. However, the reality of the law demands that within these acts of layering, definitive distinctions be drawn in support of creative rights.
American Copyright law has arguably regressed in the face of digital technologies and advances. Rather than making a leap forward alongside the progress of science and industry, the law has become further entrenched in an irrelevant and dated (mis)understanding of the world. The law is innately concerned with the production of copies instead of how they are used. As Lessig writes, “The law should not regulate “copies” or “modern reproductions” on their own. It should instead regulate users.” Because every digital transfer and use ultimately involves “copying” in some way, copyright law is invoked far more today than it ever has been. Users had far more rights with more traditional technologies like books and tapes. The everyday user would never encounter copyright law if he lent or even sold a book after finishing it, but now such actions are criminalized with digital content. The law has become more restrictive and less logical in light of modern technology.

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[A criminal act of art by Shepard Fairey]

The law has become more restrictive because legislators fundamentally misunderstand technology, art, and culture. This is a tremendously broad point that people have written books about, but it is the fundamental truth behind the problems. Lawmakers do not understand the nature of technology and the futility of fighting it. They will not admit that that all art is ultimately a remix. And, they misunderstand the culture they are desperately trying to crush. Inflexibly viewing copyright infringement as nothing more than stealing, they demonstrate a total ignorance of the industries, artists, and consumers they are unsuccessfully regulating. So, American copyright stands at a crossroads today with an essentially defunct copyright system that pretended to renew itself with the Digital Millennium Copyright Act. But, it was a false promise that restricted users in ways they never had been and gave even more incentive to copyright holders to fecklessly litigate in light of the more oppressive laws. Not only that, this act did not even address some of the fundamental and clear flaws already present in the American copyright system. There is still no registry of copyrighted material or owners. Making it essentially impossible for anyone to find out who owns what, thus allowing people to fall into accidental copyright infringement in a way that would be disturbingly akin to entrapment if it were not mere incompetence, ignorance, and simple greed on the part of our representatives. Copyright is broken. It has not and will not save the record industry, nor any other line of production that technology has passed by. Arguably important in concept, copyright has become a bludgeon incapable of even performing the task it was created for.
"Legalizing" Art: Related Questions-
      • Posing the question: Where do we think innovation and creativity come from? (From Remix NYPL talk)
        • This requires that we define what we see as legitimate sources and representations. So, with these definitions, how does this affect the way we license and put into law regulations about the arts?
      • Creativity within elements of recycling: because some things cannot possibly be articulated in a manner which does not involve a quotation of sorts,
      • Defining the word “original” -- sourcing the “root” of something: “What is original is unique to a genre of creativity”
        • Moreover if art is about, and can possibly only be about, “continuously restating the obvious,” how does one begin to pass judgement as to what constitutes this
      • Teaching cultural literacy through the remix, when the original isn’t a valuable contribution to the culture as a remix
      • Can judges pass law on an area of culture they may not fully understand? Is a nuanced understanding and culturally specific knowledge required to pass fair legal restrictions on artists?

Examples for discussion:
How are issues of copyright unique to different mediums?

      • Photography (forgery v/ appropriation): __Sherry Levine, After Walker Evans__, etc. __Richard Prince, Cowboys Series__ in which the artist photographed Marlboro ads.
      • Video: Contemporary video work where for the most part all footage and raw material is appropriated from elsewhere. Many contemporary video artists, especially those seeking to comment on speeches made by politicians or news reporters use sourced footage to do so. How is this different than Shepard Fairey using an AP photograph as his source for Obama Hope?
      • It's easy to see how copyright can be taken too far very quickly. Just take for example the case of Usher v. Homer Simpson:

      • Painting:
        • Intellectual Inspiration/ Referencing: Example given from Columbia Lecture of evolution from Raphael/Manet/Picasso
        • Most painting today is made from photographic references, how is this complicated by the possibility of someone potentially recognizing the source material?

American Copyright Law Questions:
      • If we accept that all of art is remix, where is the line for plagiarism? Is there one?
      • Even if we acknowledge that copyright is important, in light of these questions, is it intellectually honest?
        • Lessig would say yes, because innovations must be enouraged though ultimately it appears to be a fuzzy line
      • If copyright law is “wrong” but ineffective, does it matter to change it?
        • Lessig says we’re “criminalizing our children.” If we can’t stop them, does it matter?
        • Someone mentions that this won’t matter once the Baby Boomers die, is that the best answer? Particularly in light of Lessig’s conclusion about the “corruption” of our government being the ultimate root of the problem
      • There are three ways copyright law misunderstand the world as it stands today.
        • Technologically speaking
          • criminalizes production and dissemination of technology, devices, or services intended to circumvent measures" Couldn’t this be considered every computer ever made.
          • Does this gel with legal precedent? There are plenty of devices which are far more destructive (guns, cars, etc) that are allowed. Is this potential criminalization of tech justifiable?
          • The Digital Millenium Copyright Act is a new paradigm that protects not merely the content but the package.
            • Is this a good new paradigm? Is it even acceptable, really? Or does it as Lessig said for the first time regulate normal users and their usage?
        • Artistically speaking
          • If we accept that all of art is remix, then how is it that the law doesn’t allow or even acknowledge this fundamental quality?
          • Example: "Opening Title Sequence" from Wale's Mixtape about Nothing

Will a change in the law affect how art is made? Has it? Or only the money?
        • Culturally Speaking
          • As Lessig states and re-states, the law criminalizes an entire generation of young people for doing something that comes naturally.
            • There are several implications here.
              • Lessig argues that doesn’t mean we shouldn’t de-criminalize everything, but is this argument a slippery slope?
              • Is the divide between the generations something either is willing to bridge?
          • If there is no registry of copyrighted material and owners, isn’t it the government’s fault if people accidentally violate the law?
            • It doesn’t appear that the government is giving ordinary citizens the opportunity to obey the law.
            • In fact, the lack of information about copyright ownership combined with the stiff penalties seems akin to entrapment.
              • For example Shepard Fairey’s legal battles

      • Lessig argues at the end of his book that corruption is to blame. What does that mean for the future of copyright?
        • If our government is run on dollars and special interest groups, will it ever change?
        • Is it a “war” to use his term even worth fighting?
      • Even should the “war” be won whether through the passing of the older generation or the hard-fought battles of today, how do we fix copyright?
        • Lessig has some excellent examples but is that it?
          • He wants to de-regulate amateur activity
          • Have a clear title and registry system
          • De-criminalize the copy and file-sharing
        • Would his suggestions even really work? Is that enough? Or does there need to be an entire new paradigm shift?
      • Is it even possibly to have an effective copyright system?
        • Could it be similar to this one only tweaked?
        • Or are we going to have to start from scratch because this one is so broken?
          • For example many, many artists and writers have argued for perpetual copyright
            • Most of the time their arguments revolve around comparisons to tangible property like real estate which has no such limitations.
            • What other examples for such limits to property are there?
              • Are there even any?

Lian Han

The concept of intellectual property is a very difficult idea to quantify, particularly in the confines of American culture, where branding and origination have such heavy economic ties. One thing that Fisher highlights that resonates particularly with the entertainment and art world is this concept of net social gain. I think this is one of the key tenants that all legislative cases should scrutinize above all others. Rather than attempting to tell whether a work of art is a copy or "derivative work," a wider net must be cast to observe the impacts and connections that said work has caused.

I can only surmise that in the case of Shepard Fairey, the proliferation and popularity of the Obama image, and subsequent economic gains from said image, must have been the biggest elephant in the room including all the seemingly highfalutin talk of intellectual property violations. And this goes back to America's capitalist mentality toward appropriation of imagery. The laws are designed to protect the interests of the originator rather than the manipulator, particularly when something like the Obama image blows up in the public sphere. It just seems to this bystander that the only difference between a case like Rogers v. Koons, 751 F. Supp.474 and this recent Fairey incident is artistic intent.

Shepard Fairey is indeed a great artist, both by technique and by style of proliferation. His tactics at creating and cementing an image are extreme to the point of being almost proprietary to him. However, the realization that a majority of his images are appropriated adds another layer of artistic meaning to his work.

Transformation- From Matisse to Shepard Fairey
Through out the past weeks we have been exploring the idea that art nourishes itself from art. This idea, as Cunnard suggests, is not only essential to contemporary art, where “creativity is based on the freedom to appropriate and sample from previous art”, but has been part of the history of art making. Throughout his lecture Cunnard explains that although law has on occasions condemned art for law infringement when it was actually following the conditions of fair use, in general art practice doesn’t have to conflict with copyright law. One of the factors which determines whether art which appropriates other art is engaging in fair use is the degree to which the new piece engages in a transformation of the appropriated art source. Artists like Cezanne, Matisse and Picasso have appropriated and transformed previous art pieces into their work and as Shepard Fairey argues the message that those particular pieces conveyed “became more potent when [they] drew upon other art sources”. Just like the meaning of Picasso’s Les Demoiselles d’ Avignon was made more explicit by its reference to Manet’s Dejeneur Sur l’herbe, as well as by how Picasso’s transformation of this piece contrasted to Manet’s work and deliberately broke many of the foundations that characterized Manet's work as impressionist, so does Matisse’s transformation of the Cezanne’s Bather series nourishes the meaning of his own Joy of Life(Joie de Vivre).The way in which Matisse’s transformation

large_bathers.jpg joy_of_life.jpg

contrasts with Cezannes original work, through the languid, relaxed poses of the women, and the way in which in his work women are no longer “portrayed as predators and prey but nurturing”intensifies the view of women that he wishes to portray, as well as the joyous and lively atmosphere that he aims to create in his painting. In a similar way Picasso’s The Three Bathers, also seems to borrow and transform the paintings which made part of Cezanne’s Bather series, as well as the previous transformation done by Matisse. In both Matisse’s and Picasso’s work the artists engage in the transformation of the previous work which Cunard says helps to define the works which engage in fair use of other art.


However Cunard also mentions a case in which, while the art piece itself merely copies and distorts a previous art piece, the transformation is most significant in terms of the audience’s readings of the piece. In Gordon’s 24 Hour Psycho the artist merely copies Hitchcock’s Psycho and distorts it by playing the movie in slow motion so that it takes 24 hours to play the film in its entirety. However Cunard explains that this slowing down of the work represents a “transformation of the experience of the work”, and what differentiates this work from the previous Psycho film is based on the changes of “the perspective and the perception of the viewers, how they experience the work”. This transformation becomes particularly important when one considers Barthe's idea that “a text unity lies not in its origin but in its destination” and his declaration of ‘the death of the author’ and the ‘birth of the reader’. This idea takes on a particular weight in the production of the Postmodernist art piece. And it is for this reason that I would like to argue that although in his Obama/Hope poster Shepard Fairey copies Mannie Garcia’s Obama photograph and modifies it only through his change of medium and his use of white, red and blue coloring, Fairey’s work has undergone a great transformation in terms of both the message of the work and moreover the reading which the audiences can get from the image. The way he has incorporated the colors of the flag, into the actual figure of Obama and not only left them in the flag in the background, creates Obama as a figure of unity and modifies the message that the president’s figure staring into the sky is able to transmit to the readers. The reader's interaction with this new symbolical figure is very different from the interaction with the original photograph and the message that Fairey's work transmits can not be obtained from the previous image alone. It is a message of a new, brighter beginning in which color of party or skin will not infringe upon American’s ability to act as a powerful one.

obama_mannie.jpg obama.jpg

Jessica Gesund

I first came across the issue of Girl Talk and Intellectual Property Law infringement in a 2008 New York Times Magazine article, which forecasted that lawsuits were sure to follow the artist’s (given name Gregg Gillis) growing notoriety. Due to the nature of his work, it’s a given that copyright would come into the conversation. None of the works he samples are of his own composition- 2008’s “Feed the Animals” alone rips from over 300 separate artists – so how has he avoided litigation under the Digital Millennium Copyright Act through the past nine years and seven albums? Lessig asserts that his work is illegal, but the artist maintains that due to the short length of his clips, his work is protected under Fair Use.
Sampling and reference recycling was a major component of 20th Century art – from Marcel Duchamp to Man Ray to Andy Warhol – and yet none of these artists were flagged with the legal chatter that seem to eclipse Girl Talk’s creations. external image duchamp-LHOOQ.jpg external image man-ray-le-violon-dingres-1924.jpg
(Left) Marcel Duchamp, L.H.O.O.Q., 1918 (Right) Man Ray, Violon d’Ingres, 1924

external image Campbells_Soup_Cans_MOMA_reduced_80%25.jpg
Andy Warhol, Campbell’s Soup Cans, 1962

Perhaps the distinction is that he “owns” none of the rights of the music he samples, or that he composed none of the pieces. On the other hand, an appropriate analogy may be Sol LeWitt’s murals, where the artist sends a description of the work to the host institution, and other people actually compile the piece. LeWitt doesn’t actually compose the image, and yet it is his artistic vision that receives the credit and the copyright. In this way, LeWitt’s process is the inverse of Girl Talk’s, where the former instructs others how to assemble a piece and the latter assembles the work of others. The samples in Girl Talk’s work are his paint and paper. Thus his music based only on “mashup” legal because it connects various nodes in an intertextual cultural network, as opposed to claiming another’s work as one’s own? Girl Talk doesn’t own the rights to any of his samples, but the clips are short enough that he’s clearly not presenting them as his own creation. Further, they’re distinct enough to be identified and mapped.
Fisher’s Theories of Intellectual Property notes that utilitarianism is a major component of IP law, as the intent is to ensure that a work maximizes social welfare. The goal of Intellectual Property law is thus to ensure that there is an “incentive” to create and that the artistic environment is optimific. (14) Girl Talk's juxtaposition of songs over very different times periods and genres (Simon & Garfunkel's "Cecilia", U2's "Sunday Bloody Sunday" and Lil John's "Get Low" comes to mind) eliminates any connection to a specific period. He merges songs from different times and genres to yield something that transcends both categories. In a world where the Internet has exponentially increased access to information, referencing others’ work is unavoidable. We mentioned in last week’s class the dialogism eliminates temporality from the artistic discussion. Similarly, DJ Spooky notes that sampling is “like sending a fax to yourself from the sonic debris of the future”. (79) Instant, electronic communication ropes us into an inescapable network: if we can’t reference the connections, where is the “incentive” to keep going? There is a definite tension between creativity in the Internet age and archaic definitions of authorship – that the first person to compose an image or a song or video in a certain way owns the idea – that must be examined an re-fitted to fit a new means of creating art.

Saaret Yoseph: Intellectual property is already such a legal oddity, I find it difficult to consider in the context of art -- especially altermodern art. Jeffrey Cunard’s rundown of illegitimate artwork vs. legitimate appropriation was an interesting introduction to the nuances of open source art-making. After learning that photojournalists are most likely to sue for copyright infringement, the Shepard Fairey case seemed that much less surprising. In theory, fair use can allows for appropriation, but only so far. I was caught by the statement that there can be no copyright on an idea or style; only expression can be protected.

It seems like so much of the discussion around copyrights, plagiarism, etc. revolves around perceived contribution to the original work or the transformation of the product. DJ Spooky’s phrasing of “Lego building blocks of consciousness” (33) spoke to Lessig’s idea of the remix as a way to see, think and respond to the world around us. Copyright exists then as a way to fence in blocks of creativity, an increasingly futile effort in the context of digital media. This inevitability about appropriation was emphasized by Lessig’s explanation that “kids” (I guess that includes, me?) can’t go back to being passive consumers. Remix can’t be stopped, only criminalized or driven underground.

What’s additionally problematic is the constant question of source material. Who is the real originator? Who really has claim to the work? I came across this Techdirt blog post about a copyright case filed by Roy Lichetenstein’s estate that was particularly anecdotal. “Originals” can be phonies too.

Jess Perlman
Even though questions of authorship and ownership abound in today’s digital, easily remixable, RW culture, one of Lessig’s primary arguments kept jumping out at me. It is the distinction between the commercial and the private community when looking at remixing or appropriation. If the purpose of a remix is to share relatively private and lacks the element of commercial gain, it seems preposterous that copyright laws continue to be so rigid. Lessig argues that these community oriented remixes may even help the commercial market for such products. “Remix is an essential act of RW creativity...the critical point to recognize is that the RW creativity does not compete with or weaken the market for the creative work that gets remixed. These markets are complementary, not competitive.

Take this video as a perfect example. Someone has creatively taken a scene from Disney’s classic Snow White and the Seven Dwarfs (I’d be shocked if they haven’t been sued for copyright infringement yet!) and remixed it with audio from Daft Punk and uploaded it on Youtube, one of the best examples for community based sharing. While it may not seem like a natural pairing to most, what results is an entertaining reimagining of both the audio and the visual. The remix serves in this case to bring a new audience to each original work of art. Likely those searching on Snow White clips might not be expecting (or even familiar with Daft Punk) and, potentially, vice versa. The end result of this exercise in remix is not going to lessen any individual’s desire to see the original Disney classic, but somehow, I don’t think the lawyers at Disney will share my (or Lessig’s) sentiments.