A few weeks ago, I delighted in a entertaining Simpsons spoof of Woodstock and the baby industry. The jokes were everywhere, and I had to stop the VCR just to catch my breath. The Simpsons has just been getting fresher and funnier and better. However, the multitude of cultural references (Who songs, etc.) in the episode were things only a major multibillion dollar media empire could bankroll the rights for (and yet, as Lessig notes, this same company can be ruthlessly mercenary when demanding tribute from underlings). These delightful cultural references and spoofs are something which Fox’s legal department can easily clear the rights for, but very few independent artists could afford to do.
One solution, of course, is for the artist to rely on stock footage or to wade through the creative commons archives. But in this day and age we are surrounded by CNN, Britney Spears, American Idol, Simpsons, Harry Potter and Lord of the Rings. Should artists pretend that pop culture just doesn’t exist? To do that implies that postmodernism as an artistic movement no longer is relevant. Even the standard of “fair use” seems insufficient (and technologically difficult to define). It seems intended to support secondary works (criticism that shines a light on the original work in question) rather than primary works (Variations on a Theme by Paganini, The Wind Done Gone, etc). As an artist, I feel I can no longer borrow/steal/coopt from my cultural environs without forswearing commercial possibilities or content myself with producing “underground works” that could be suppressed in an instant by a cease and desist letter.
As Lessig wrote, we now live in a “permission culture,” where things are presumed to be forbidden unless we gain “clearance” beforehand. At a recent South by Southwest panel on copyright and creative commons, I posed a question to the panelists: When we turn away from billboards, cable shows and pop songs all around us, are we as artists ignoring our duty to portray the world? In film and literature classes, we were taught to delight in the admixture of high culture and low culture in the cultural space. We were supposed to applaud Andy Warhol’s coopting of soupcans and feel liberated enough to recontextualize the same commercial icons that were drowning the world in banality. Now corporations own these references. And vigorously enforces its copyright (in fact, that is one of the benefits to arise from mass consolidation) . Artists no longer collaborate or offer advice; instead one artist’s legal department has to negotiate with the other artist’s legal department. And for artists without the benefit of a commercial backer, well, there’s always 19th century works to plunder from.
This issue has become very real to me recently. I’m working on a story project that is a set of variations on a mainstream Hollywood movie. The film is obscure, and this probably is the first website about it, and yet, so many extraneous and self-defeating issues have cropped up. Do I have the right to use photo stills from other websites? Do I have the right to use the title of the film in my website’s title? I had never intended it to be a commercial work (I slap creative content licenses on everything I create), but what if someday I decided to try publishing it commercially? A friend of mine pointed out that no self-respecting publication would touch this project because it would mean first clearing the rights from Bertelsmann/Time/Warner. Maybe this empire would grant limited commercial rights if certain fees were paid. Hey, I wouldn’t mind so much if the director were the one pocketing the check, but more than likely, the check would go to underwrite the empire’s intimidation machine. Last weekend I had talked to a friend who had just signed a 4 book deal with a publisher of romance fiction. It was her big break. One of her books had the words Jedi and Ewoks title; she prayed that her publishing house could secure the rights from lucasarts to use those words in the title. Fortunately, her publishing company is probably used to clearing rights, and so she’ll probably gain clearance (after a fee is paid). But nowadays just to use or cite a corporate-produced work makes you subject to tribute. This drag on artists makes the already abysmal system of content production even more abysmal. In many ways the SCO-ization of media companies makes media companies better at protecting artistic rights than producing art in the first place.
In the meantime, I look at my creative projects and ask: should I bleach cultural references? People ask: what killed postmodernism? My answer: big media and its attempt to exert ownership rights over popular culture and (by implication) the imagination of artists. From this corporate postmodernism, cultural isolationism becomes tempting indeed.
Update (later?): just wanted to update my thoughts here. Apparently, the federal court decision about the Wind Done Him Wrong (PDF) court decision covers use of fictional characters for commercial works. So perhaps copyright owners do not have as much veto power as originally supposed.
However, the threat is still there, and in cases where the borrowing is not a reworking of the original content(sampling), you’re in uncertain waters.